## Thursday, December 26, 2019

### Job Opening

The Esya Centre is inviting applications to join the Centre as a full-time Fellow (Economist - Research and Policy).

The Esya Centre aims to generate empirical research and inform thought leadership to catalyse new policy constructs for the future. It simultaneously aims to build institutional capacities for generating ideas which enjoin the triad of people, innovation and value, consequently helping reimagine the public policy discourse in India and building decision-making capacities within government. Esya invests in ideas and encourages thought leadership through collaboration. This involves curation of niche and cutting-edge research, and partnerships with people, networks and platforms. Moreover, it prioritises multi-disciplinary research to engender "research clusters", through which practitioners and researchers collaborate.

Some recent examples of our work:

1. Shohini Sengupta and Aishwarya Giridhar, Contemporary Culture and IP: Establishing the Conceptual Framework
2. Megha Patnaik, Policy Uncertainty in Indian e-commerce

The Fellow is expected to undertake research that informs policy. The broad areas of research towards which the Fellow will contribute are: innovation, competition, copyright and IPR; labour and productivity; technology regulation; and online markets in India. The Fellow will work collaboratively with other research staff at Esya and the Esya network, which connects diverse specialisations. The primary goal is to provide an economic perspective of the themes being explored. The fellow is expected to activity participate in disseminating research output and leading new research initiatives and collaborations.

### Preferred skills and qualifications

• Master's in Economics with at least four years of experience or a PhD;
• Demonstrable interest (as ascertained from high-quality published articles or working papers) in network and platform markets, economics of innovation and technology policy;
• Excellent writing, analytical and communications skills;
• Proficiency in computer skills, information databases;
• Ability to mentor juniors and work in a team; and
• Ability to work under time pressure and to juggle multiple tasks within tight deadlines.

### How to apply

Please email your CV, covering letter, and a writing sample to contact@esyacentre.org with the email subject heading, "For the Fellow (Economist) Position".

## Wednesday, December 25, 2019

### A glitch in the payments at the U2 concert, and lessons for design principles

by Sanjay Jain, Rajeswari Sengupta, Ajay Shah.

On 15 December 2019, for the first time, U2 was to perform in Bombay. The organisers of the concert came up with an elegant vision for how 50,000 people would be fed: This would be done through an all-electronic payments process.

It was supposed to be all pretty and perfect. Along with the tickets, everyone got a card that contained an RFID tag. The card had to be activated by scanning the inbuilt QR code using the android QR code app. This took customers to a URL. On the website customers were required to register (with a name, phone number etc) and then pre-load the card. It was announced that the pre-loading could be done exclusively via a particular payments app. Once this step was completed, customers would need to tap their cards at any of the physical kiosks at the venue in order to update the card with the online balance.

 Front

 Back

Customers were informed that food and beverages could only be purchased at the concert venue using the RFID card, no refunds would be available and that there would be physical kiosks at the venue for topping up the cards. While those counters would accept both cash and cards for payment, the food and beverage sellers would only accept the RFID card.

Thus, a key part of the design vision was coercion of the customer by forcing all payments for purchases to be done only through one mode.

#### Failures in consumer protection

The cashless monopoly electronic payments mechanism had unhappy features from the viewpoint of a consumer. The design was complex, requiring customers to first do an online transaction for loading the RFID card and then a physical transaction at the venue for getting the amount to the card, even before the card could be used for purchases. In other words, two additional steps were required to potentially save time during a future purchase transaction.

The minimum recharge amount for the card was Rs.500. Customers were forced to do this without any upfront knowledge about the prices of the goods sold at the venue.

To load Rs.1000 into the wallet, the customer was charged a fee of Rs.100. On this fee, there was a GST of 18%, so the payment went up to Rs.1118. This was a total cost to the consumer of 11.8%, as compared with paying cash.

To add insult to injury, the money left on the card was not refundable. What was not spent would be confiscated by the payments vendor. Customers were thus required to estimate their expenses without knowing the prices of the goods up front. This disrupted the biggest benefit of digital payments i.e. the ability to make a purchase without planning for it beforehand.

Even in the best case scenario where the design envisioned by the organisers worked, customers were left with an experience worse than a cash payment, for a significantly higher price. Even in its conception, this was not a very attractive grand scheme.

#### Failures in system operation

In the event, the grand scheme collapsed because it just did not work. There rapidly emerged two classes of customers at the venue.

One class was represented by customer X who had pre-loaded the RFID card with Rs.500 using the app before arriving at the concert venue. At the venue she found that her F&B spend would be (say) Rs 1000. Despite having taken the trouble of registering and pre-loading the card prior to the concert, she now had to stand in two long queues at two separate kiosks: one to first update the card so that the online transaction of Rs 500 was fed into the card, and the other to top-up the card with Rs 500 so that she could make her F&B purchases.

There were thousands of such customers who went from one queue to another even before their registered cards could be used. The queues at the payment counters soon became longer than the queues at the F&B counters.

The other class was represented by customer Y who had not registered or activated her card before the concert. At the venue she had to first activate her RFID card using mobile data connectivity, load the minimum amount of Rs.500 online, and then stand in the queue to update the card so that she could use it for purchases. In case she wanted to top-up the card, she would have to stand in the queue again.

Given the large fees (11.8% plus the possibility of non-refund), users were careful to avoid putting too much money into the card, and thus ran the risk of undershooting.

At first the hassles were only about standing in multiple queues. Things got worse when the systems at the kiosks for updating the registered RFID cards stopped working. This meant that thousands of customers who had pre-loaded their cards could neither use their cards to make purchases nor get refunds.

 The venue was swamped with a large number of queues for one thing or another.

The mobile data network crashed at the venue with thousands of people trying to access it. This meant that thousands of customers who had not pre-activated their cards, were unable to do so, let alone update the same and use for purchases.

Despite the utter chaos, the merchants inside the stadium stood firm, in unison, in refusing to sell goods to the customers using any other payment mechanism.

The net result was that thousands of people were left without food and beverages despite possessing all reasonable modes of payment and despite there being multiple merchants selling the desired items. Money -- the bridge between buyers and sellers -- broke down due to the framework of coercion around only one technical standard that was permissible.

This was a mess-up at multiple levels:

• Poor product experience, requiring multiple redundancies such as to transfer from online payment to the RFID tag,
• Poor planning on the part of the organisers and not factoring in the possibility of collapse of data network at a venue filled with thousands of data users,
• Fleecing of the customers with a steep 10% load charge and forfeiting unused balances,
• Coercion of customers by not giving them alternative payment options.

#### Learning about design principles from this episode

Many an engineer can come up with a grand scheme that sounds nice. For an engineer, it is easy to build, and easy to work with simple monolithic systems that are designed by someone and imposed on everyone. The engineer's job is easier, operating in such a world, than in the messy real world of multiple technologies. However, social systems and the interactions of a large number of people are complex, and the best laid plans of designers are likely to go awry.

We are in favour of innovation, and trying out shiny new ideas. Offline instant digital payments through RFID tags sounds like a great idea, particularly when you anticipate a crowd and poor network conditions. However, innovations can and do fail. The wise path is to never have a single point of failure, to always ensure that customers can access other options, that the failure is not as damaging as it was at the U2 concert. Payment is an enabler, and not the final product, and when the payments system actually hampers transactions, it is a tragedy.

The problems of a single centrally planned solution, inside one stadium, help us in thinking about central planning more generally. Each new innovation must face the market test. It is always better to have organic evolution, where many rival solutions slug it out in the marketplace, with no coercion that helps or hinders any one solution. This will give more robust solutions (no single point of failure), let the market evolve towards numerous solutions that fit numerous work environments (e.g. decentralised data works better when communications systems break down, centralised data has its own advantages for certain situations, etc), and prevent any one vendor from ripping off the consumer. It is good to have competition between multiple technologies, and multiple technology choices that fit the very diverse array of use cases that are seen in India.

We have traditionally extolled the role for cash as a way to protect individual privacy and freedom. We must also respect the remarkable UX of physical cash transactions, and contrast this with the hoops that many digital schemes want to force consumers to jump through. The cashless dystopia of the U2 concert teaches us that cash has one more important function: In a disaster zone where IT infrastructure has broken down, cash is the way to get transactions done. Physical pieces of paper will be important for a long, long time.

Sanjay Jain is at CIIE.CO, IIM Ahmedabad.  Rajeswari Sengupta is a researcher at IGIDR, Bombay. Ajay Shah is a researcher at NIPFP, New Delhi.

## Tuesday, December 24, 2019

### Chennai 2015: A novel approach to measuring the impact of a natural disaster

by Ila Patnaik, Renuka Sane, Ajay Shah.

In November and December 2015, the city of Chennai in the Southern Indian state of Tamil Nadu, got heavily flooded owing to unprecedented rainfall. With a population of a little more than 7.1 million people, Chennai is one of the major urban centers of South India, and one of the four important metropolitan cities in India. The flooding is estimated to have led to the loss of more than 500 lives, and damages of about US $3 billion, making it the world's eighth most expensive natural disaster in 2015. In this paper we evaluate the impact of this event for households in Chennai. Natural disasters, such as the Chennai floods, are important shocks which can influence all parts of the income distribution. In the aftermath of such a natural disaster, the issues of consumption smoothing, liquidity constraints and financial resilience play out. Natural disasters are important in their own right, as we need to understand more about the turmoil faced by households in such states of nature. All governments engage in redistribution in the aftermath of a natural disaster. This motivates research on studying the impacts of natural disasters. Natural disasters are also an opportunity to obtain insights into the economics of household, through observation of households when confronted with such a large shock. Many researchers have gone into the field after a natural disaster has taken place, and produced evidence about health, income, consumption, and financial conditions in the aftermath of the disaster. But such research does not offer insights into the causal impact of the event as adequate information gathering about baseline conditions, before the event, is lacking. When panel data about households is present, we observe households before and after the natural disaster. This makes possible the analysis of the adverse impact upon affected households, while additionally observing controls. The constraint in such research has been the time elapsed between two consecutive observations of each household. As an example, even if a panel is measured once a year, there would be many months of elapsed time between the two measurement dates that bracket a disaster event. In a new NIPFP working paper, Chennai 2015: A novel approach to measuring the impact of a natural disaster we exploit the new opportunities for measurement which flow from the CMIE Consumer Pyramids Household Survey ("CPHS"), which measures a panel of 170,000 households across India. Each household is met with three times a year. There is thus a period of four months, across which the household is measured twice, within which each natural disaster lies. We setup difference-in-difference estimation where households in Chennai are the treatment'' group and unaffected households in the rest of the state of Tamil Nadu are the control'' group. As households in Chennai are among the more affluent ones in Tamil Nadu, the raw dataset has poor match balance, and we address this problem by also performing matched DiD analysis. We investigate three questions. First, we evaluate the impact of a flood on household income and consumption expenditure. It is possible that a disaster leads to declines in household income and expenditures owing to the destruction. However, it is also possible that households increase their spending to cope with the disaster, or replace capital stock. For example, some household activities, such as cooking, would shift from internal production to purchases from external providers, which would augment demand for certain goods and services. Households would start buying goods and services for reconstruction almost immediately after the destruction. Large scale expenditures on relief and reconstruction by the Indian state would bolster the local economy. We find that there was no statistically significant impact on household income during the flood months. Households in Chennai, however, saw a 32% increase in consumption expenditure relative to the non-affected districts. The largest percentage increases in expenditure were seen on health, and power and fuel. A key figure is shown above. The dotted line is for the controls and the deep green line is for households in Chennai. In both cases, what is shown is the monthly expenditure per person. The vertical black lines bracket the flood events. At the outset, the households observed in Chennai are, on average, more affluent than the controls. Roughly speaking, we do have parallel trends in the period prior to the flood. During the flood, there was a large surge in expenditure which runs for many months. After that, consumption went down, to a point where the Chennai households were now comparable with those seen in the rest of Tamil Nadu. Second, we evaluate the variation in the change in expenditure for different households. The adverse impact upon persons who live in structures with inferior structural strength is likely to be larger. We categorise households as more vulnerable, or more financially constrained, through various characteristics such as not having a concrete roof, or not having modern finance (such as life insurance, mutual funds, equity market participation), or not having durable goods (such as ACs, refrigerators etc). We find that the consumption expenditure of the these weaker households increases by a smaller amount than those not financially constrained. This might mean more hardship, and a higher inability to cope with catastrophic events. Third, we evaluate the mechanism that households use to finance the higher consumption. Households could either draw down their savings, or increase their borrowings to finance expenditures. Our analysis suggests that relative to the control group, fewer households in Chennai saved, borrowed, or purchased assets, in the period after the floods. This suggests that reduced savings and reduced purchase of assets was the channel through which the consumption surge was financed. In our data, after about a year, the consumption surge ended, and was followed by a further decline in consumption. This may be consistent with households refocusing on repairing their balance sheet. Natural disasters kill around 90,000 people and affect close to 160 million people worldwide. The frequency and intensity of disasters are expected to increase with global warming. Greater understanding is required about how natural disasters impact economic outcomes, so that better public and private responses may be designed. The contribution of this paper lies in bringing new tools of measurement (panel data, three times a year, matched DiD) to bear on an important problem (natural disasters) and discover the phenomena that are at work. The novel estimation strategy shown here can now be applied for many natural disasters in India. Over time, a body of work can develop of this nature, through which more abstract insights can be obtained. The authors are researchers at NIPFP. ## Thursday, December 05, 2019 ### Announcements ### Call for Applications Ashoka University is inviting applications for the China-India Visiting Scholars (CIVS) Fellowship program. CIVS is an opportunity for academics, policy experts, and professionals who are interested in expanding their current research to include China. The fellowship is aimed at creating more knowledge about China in India and encourage academic exchange of early- and mid-career scholars. This is a fully-funded fellowship that will provide 10 Indian scholars, who have had limited to no experience with China, the opportunity to develop an understanding of China’s experience and include it in their research. The theme for 2020 is Economics and Development. This fellowship is ideal for scholars who are researching or working under the umbrella topic of economics and development, including (but not limited to) agricultural, urban development, education, vocational training, energy management, governance and performance management, rural poverty alleviation, food security, environment, public health, innovation infrastructure, and other similar areas, and are interested in developing a deeper understanding of China. Fellows can partner with an institution of their choice, or tap into Ashoka's network of institutions, which includes the National School of Development (Peking University, Beijing), Institute of New Structural Economics (Peking University, Beijing), Center for China and Globalization (Beijing), NYU Shanghai (Shanghai), HSBC Business School (Peking University, Shenzhen), Tianjin University of Finance and Economics (Tianjin), and the Hong Kong University of Science and Technology (Hong Kong). The fellows will be guided and mentored by a Fellowship Committee, which includes top economists and China Studies scholars in the country. The fellowship runs for 9 months, includes a visit to China where fellows will work with a counterpart who is researching in a similar area of study, and concludes in a seminar in December 2020. The fellows have the flexibility to continue working at their current position while pursuing this fellowship. More details about the fellowship and application available on the link above. Applications will be open until February 15, 2020. ### Why China The partnership between China and India is arguably becoming one of the most important partnerships of the 21st century. Both countries, with their massive populations, economies, and environmental impact, have outsized effects on the trajectory of global affairs. Given all of this and the shared 3,380 km border, there is still little understanding in India about China, and in China about India. If there were a prime moment to understand each other, this would be it. For any questions, contact suhail.thandi@ashoka.edu.in ## Wednesday, December 04, 2019 ### The 10th Emerging Markets Finance conference An intellectual feast, in Bombay, 12-13-14 December. ## Saturday, November 16, 2019 ### In Service of the Republic: The Art and Science of Economic Policy, by Vijay Kelkar and Ajay Shah In Service of the Republic: The art and science of economic policy, by Vijay Kelkar and Ajay Shah, Penguin Allen Lane, 2019. Main page | Amazon As a$3-trillion economy, India is on her way to becoming an economic superpower. Between 1991 and 2011, the period of our best growth, there was also a substantial decline in the number of people below the poverty line. Since 2011, however, there has been a marked retreat in the high growth performance of the previous two decades.

What happened to the promise? Where have we faltered? How do we change course? How do we overcome the ever-present dangers of the middle-income trap and get rich before we grow old? And one question above all else: What do we need to do to make our tryst with destiny?

As professional economists as well as former civil servants, Vijay Kelkar and Ajay Shah have spent most of their lives thinking about and working on these questions. The result: In Service of the Republic, a meticulously researched work that stands at the intersection of economics, political philosophy and public administration. This highly readable book lays out the art and the science of the policymaking that we need, from the high ideas to the gritty practicalities that go into building the Republic.

Nandan Nilekani: One of the most significant works on India's economic policies, this brilliant prescription for the country's future by two practitioners could not have come at a better time. Dr. Kelkar has played a role in many major financial reforms since liberalisation. What is most alluring about the book is its approach of tackling difficult economic concepts and making them accessible and engaging for the lay reader. A must-read for everyone.

Bibek Debroy: Two respected economists, who have worked in government and for government, have produced a remarkable and wonderful book, examining government, governance and state intervention in a charming and reader-friendly way. A book in the service of every citizen.

Pratap Bhanu Mehta: This marvellous book is a wonderful guide to thinking about public policy. It combines three things that rarely come together: clear analytical thinking on first principles, a good sense of historical judgement and a commitment to the values of freedom and fairness. It is the work of masterly professionals making their thinking accessible to a wider public.

Avinash Dixit: Kelkar and Shah have written a masterly book, combining in-depth personal experience and sound economic principles. With simple language and vivid examples, they offer many home truths about the why, when, what and how of policy, and even more important, when to do nothing. I hope India listens.

## Thursday, October 31, 2019

### Elements of the low Indian labour force participation rate: The elderly

by Subhamoy Chakraborty, Renuka Sane and Ajay Shah.

India has a remarkably low rate of labour force participation. The Periodic Labour Force Survey (PLFS) carried out under the Ministry of Statistics and Programme Implementation estimated the labour force participation rate (LFPR), for individuals of age 15 and above, at 49.8% in 2017-18. The CMIE CPHS survey, which has more recent information, has shown a decline in the LFPR by 2019. These numbers suggest that a large part of India is not in the labour market. These magnitudes of non-participation are much larger than the rates seen with unemployment. The grand question of Indian labour economics is that of understanding the low LFPR. The grand question of Indian economic policy lies in obtaining a 50 per cent gain in GDP through a 50 per cent increase in the labour force.

One big element of this LFP problem is women's LFP. The women's LFPR has been falling. In 2011-12, India was already one of the countries with the lowest female labour force participation. This has gotten worse with time. In 2017-18, the female LFPR fell to a historic low of 23.3%. A remarkable feature of the Indian women's LFPR is the comparison against countries like Pakistan (24%) or Bangladesh (36%). For those of us who believe that women's agency in India is ahead of that in Pakistan, this is a bracing fact. The examination of women's LFP is an important crossroads between labour economics and gender studies. It also emphasises the importance of gender studies in thinking about India.

The other two big elements of the LFPR problem are the young and old. In this article, we delve into labour supply of the elderly and establish some basic facts of this field. The positive and normative economics of elderly LFP is an important element of labour economics, given the large and growing share of the elderly in the population. It is also a major issue in ageing studies. High labour force participation by the elderly is well known to contribute to emotional and physical well being. It is generally better for a person to work for a wage of Rs.50 a month rather than obtain a pension of Rs.50 a month. The puzzle of the field lies in devising labour market arrangements that will harness labour supply of the elderly, and avoid the abrupt event of retirement.

The elderly are defined as those above the age of 55. The 55-64 age group is also part of the conventionally defined working age group (age 15 to 64). The 65+ age group constitutes the old elderly.

### Data

We study the Consumer Pyramids Household Survey (CPHS), a pan-India panel household survey of about 170,000 households carried out by the Centre for Monitoring Indian Economy. The survey asks about the present employment status of each member above 15 years of age. The response to the employment question is recorded as a 4 point status:

1. Employed
2. Unemployed, not willing and not looking for a job
3. Unemployed, willing and looking for a job
4. Unemployed, willing but not looking for a job

Individuals whose employment status is either Employed (1) or Unemployed, willing and looking for a job (3) are considered to be a part of the labour force. In this article, we examine the data for January - April, 2019.

### Overall

Table 1 provides estimates of the labour force participation by age group. There are approximately 375 million workers in the 15-54 age group, giving a LFPR of 45%. The LFPR drops slightly to 44% for the 55-64 age group with 51 million workers. The LFPR drops dramatically to 12% for the 65+ age group with only 8.4 million workers.

Table 1: Labour Force Participation: Age Group
Age Group Population
(in millions)
LFP
(in millions)
LFPR(%)
15-54 828.3 375.0 45.3
55-64 115.6 50.8 43.9
65 and
above
69.1 8.4 12.1

Figure 1 presents the labour force participation rate (LFPR) of those above the age of 55. The labour force participation was a little over 55% at age 55, and fell to about 10% by age 70.

Withdrawal by the elderly from the labour force generally happens for one of the following reasons: (a) people are required to leave their main job at a specific retirement age, (b) are unwilling to work because they value leisure more and access to pensions at a sharply defined age which makes it feasible to stop working (c) are unable to work because of health constraints or (d) the labour market is unfriendly to older workers. In the US, for example, sharp drops in participation are seen at the age of 62 and 65, when access to social security benefits becomes available.

In India, formal pension arrangements are only in place for a small part of the population. Hence, factors "(a)" and "(b)" above should not matter much in India. And yet, we see a sharp drop at age 60. This suggests that reasons such an unfriendly labour market might explain the large drops in labour force participation at older ages.

### Changes over time

Figure 2 presents the labour force participation rate in 2016 and 2019. We see that there has been a small increase in the participation rate for the 55-59 age group between 2016 and 2019. However, for all other age categories, there has been a remarkable fall. For example, about 42% of the 60-61 age group participated in the labour market in 2016. This had fallen by about 10 percentage points in 2019. Similarly, in the 65 plus age group, labour force participation was at 28%. By 2019, this had fallen to 12%. This suggests that that stress in the economy has hurt the elderly more than prime-age working males. This may be part of a larger phenomenon, where prime age working males are protected in economic downturns, while all other parts of the labour force (women, the young, the old) seem to lose employment at higher rates.

### International comparison

It is useful to ask how these compare to the numbers in the OECD countries, where formal pension systems shape the decision to retire. Table 1 presents the elderly labour force participation rate (LFPR) in India, US and Japan.

Table 2: LFPR: Comparison with US and Japan
Age Group India (%)
(Jan-Apr 2019)
US (%)
(2018)
Japan (%)
(2018)
55-59 52.7 72.3 83.4
60-64 29.4 57.1 70.6
65 and
above
12.1 19.6 24.7

In 2018 according to the Bureau of Labor Statistics in the US, 72.3% of those in the 55-59 age group were in the labour force. The participation rate fell to 57.1% for age group 60-64 and further declined to 19.6% for those above 65. Meanwhile the labour force participation rate in Japan, as reported by Statistics Bureau of Japan, was 83.4%, 70.6% and 24.7% for age groups 55-59, 60-64 and above 65 respectively. Japan has, in fact, seen a resurgence in elderly labour force participation in recent years owing to better health and education, as well as reduced generosity of social security programs.

Japan is considered one of the best countries in terms of integrating the elderly into the labour market. Suppose we treat Japan as a frontier: the outer limit of what is possible with labour market participation by the elderly. How much would we in India gain if we moved up to this frontier?

If the LFPR of the 55-64 age group in India (which is 43.9%) were to become the same as that of Japan's (77%), then the overall working-age LFPR would go up to 49.15%. This is a 4 percentage point increase in the LFPR owing to increases in the labour force participation of the "young old", and would mean that an additional 38 million individuals would be in the labour force.

An additional 9 million people, of age 65+, would also join the labour force, by matching the Japanese LFPR for the age group of 65+.

Totally, 47 million people would enter the Indian labour force if we moved up to Japanese levels of LFP from age 55 and above. This is an economically significant number. This magnitude of impact will go up in the future as India ages.

### Conclusion

The Indian labour market has a remarkable feature: of low labour force participation. In this article, we examine one facet of this problem: the low LFP for the elderly. Despite the prevalence of a large informal sector, and the absence of a formal age of retirement, we find that the elderly labour force participation is low, and has actually fallen between 2016 and 2019.

Withdrawal from the labour market is bad for the elderly and bad for the economy. The examination of the LFP of the elderly is an important crossroads between labour economics and ageing studies. Further research is required in identifying the causes behind the low LFPR of the elderly.

The authors are researchers at the National Institute of Public Finance and Policy.

## Thursday, October 17, 2019

### Towards an administrative framework for building public trust in vaccination

by Siddhartha Srivastava.

In January 2019, the Delhi government published a notification mandating the administration of the Measles-Rubella (MR) vaccine to all children between 9 months to 15 years of age. The vaccine was meant to be delivered as a booster shot irrespective of the previous vaccination status of the child. The notification did not provide any information with respect to the manner in which the MR campaign was to be carried out. Instead, it stated that since the "Measles-Rubella (MR) campaign is a National Policy like the Pulse Polio Programme...no consent is required from the beneficiaries/their parents". This led to widespread panic among parents who eventually filed a petition before the Delhi High Court challenging the notification. The notification was challenged on the grounds that the express consent of the parents was not a requirement for administering the booster shot.

In response to the challenge, the Delhi High Court ordered a stay on the administration of the MR vaccine in the city and directed the Delhi government to ensure that express parental consent was obtained before the measles vaccine could be administered to children. The court also directed the Delhi government to publish advertisements with respect to the procedure of administration of the vaccine as well as information with respect to the side-effects of the booster dose such that parents can provide their informed consent for vaccination.

### Methodology

We examine MR campaigns conducted by the state governments of Delhi, Tamil Nadu and Kerala by using primary and secondary legal sources:

1. Notifications/circulars issued by central and state governments with respect to the implementation of the MR campaign (see, here and here).
2. Judgments arising out of litigation against vaccination campaigns and vaccine liability (see, here and here).
3. Legal papers and journal articles on mechanisms to deal with issues of vaccine hesitancy.
4. News articles reporting cases of vaccine hesitancy in the chosen states.

We reviewed these materials with a view to understand the current framework of vaccine administration in these states with a specific focus on the processes present in these frameworks (or lack thereof) to deal with vaccine hesitancy. We compare India's approach to vaccine administration to that of the United Kingdom, Canada, Australia and the United States. Accordingly, we attempt to derive best practices that can contribute to a model administrative framework for vaccine delivery specific to India with inherent checks and balances to address vaccine hesitancy. (see, here, here, here and here).

### Analysis

A study of the MR campaigns undertaken in Delhi, Tamil Nadu and Kerala suggest that vaccine opposition in these states can be broadly attributed to the following causes:

1. Shared beliefs about safety, efficacy, potency and manner of delivery: Parents in Delhi are apprehensive about the effects of a booster dose of the MR vaccine given that their children have already been vaccinated for measles.
2. Difficulty in accessing and understanding credible scientific information on vaccination: With the internet having become a repository of health-related information and in the absence of a framework for regulation/monitoring of such content, South Indian states such as Tamil Nadu and Kerala have witnessed the spread of erroneous, non-scientific information regarding vaccines over the internet and other media. Widespread misinformation and rumour-mongering on the internet, especially social media, has been a common characteristic of the MR campaigns across the country.
3. Difficulty in accessing and understanding the legal/regulatory framework governing vaccination: Parents in Delhi and Kerala have raised concerns about scattered and often incomplete rules framed by state governments to undertake the actual administration of the MR vaccine.
4. Reliance on religious, cultural and personal beliefs rather than proven facts and evidence: Opposition to the introduction of the MR campaign in Delhi, Kerala and Tamil Nadu suggests that vaccine hesitancy is not uniform across communities in each state but tends to occur in specific clusters (such as specific religious communities or groups that believe in non-traditional medicine). The identification of vaccine hesitant subgroups is imperative to understand the causes of their hesitancy and develop targeted interventions to increase vaccine uptake.

### Towards a Trust Based Framework

Keeping in mind the causes of vaccine hesitancy in India, it may be helpful to design an administrative framework to streamline vaccine delivery with built-in checks for tackling vaccine hesitancy. The presence of an administrative machinery may be useful in addressing the public trust deficit in vaccination, in terms of:

Formalising an awareness/communication strategy for vaccines: The administrative framework should contain strict rules for engaging with the public. This includes provisions for ensuring frequent awareness campaigns, dialogue with members of different communities, public campaigns by doctors, vaccinators and other public health experts, media outreach through public figures etc. Rules for engagement with the public during the introduction of new vaccines, changes in immunisation schedules and experimental vaccine trials can prove useful in reducing public fear at the outset. A compelling example of the effect of a well-formulated communication strategy can be found from within India itself in it's pulse polio campaign of the late 1990s. Targeted communication played an important role in raising awareness and building trust in the polio campaign with popular media figures and sports personalities advocating the benefits of vaccination over various media such as film, television, radio and print.

Formalising the procedure for vaccine delivery: Organised and accessible rules of procedure with respect to time, place and manner of vaccination can strengthen public confidence in vaccines. Specific information with respect to vaccine description, quality, indications, contraindications, side effects, dosage, age group, manner and place of delivery, catch-up immunisations etc. can provide a measure of certainty to parents and make them more comfortable in engaging with vaccination campaigns of the government. For example, each state in the US has it's own set of immunisation laws and regulations. These laws are procedural in nature and set out the administrative mechanisms through which schools, universities, pharmacists, and health-care facilities etc. are required to administer the various vaccines prescribed by the ACIP. In India, we find that the exact mechanism/process of vaccine delivery changes constantly based on where the vaccine campaign is being carried out and the nature of the campaign itself. For example, certain states prescribe that immunisation take place only in schools while others allow for vaccination at schools, public health centres, home-visits etc. As such, there is a need for consistency in the procedures followed to administer vaccines, one which can be addressed by having a set of codified procedural rules for vaccination in each state.

Monitoring, evaluation and reporting: The administrative framework may specify reporting requirements. Requirements with respect to monitoring and reporting the incidence of vaccine preventable diseases, coverage rates and adverse effects following vaccination (AEFIs) can assist in the formulation of stronger mitigation strategies for vaccine preventable diseases. Australia has adopted a national surveillance system that reports instances of adverse events following immunisation from state and territory registries as well as data sent directly from consumers, health professionals and vaccine manufacturers. These reports are regularly reviewed by the regulator and referred as required to expert committees, such as the Advisory Committee on Vaccines, to ensure ongoing safety assessments. In India, an AEFI surveillance framework has been in place since 1998. The national AEFI guidelines provide a set of standards for undertaking the investigation and assessment of cases reported as AEFIs. All states and districts are required to constitute AEFI committees, which assist in streamlining AEFI surveillance at the local level. However, the number of serious AEFIs reported in India are still far lesser than expected numbers. A large number of AEFI committees established at the state and district level are not functional, as a consequence of which there is insufficient real-time AEFI data being generated and stored accross the country. Recent reports suggesting the presence of the polio type 2 strain in oral samples of polio vaccines expose the inadequacies in our current monitoring and evaluation systems while further making the case for a standardised administrative framework for vaccine delivery.

Establishing a mechanism for accountability: The administrative machinery should include a mechanism for empowering communities to question vaccination practices, introduction of new vaccines, reasons for the occurrence of AEFIs etc. This will be a useful departure from the current practice of placing blame on state governments, without having any recourse to an institutional/administrative mechanism for grievance redressal. In order to ensure accountability, more than 15 countries around the world have instituted compensation mechanisms for vaccine related incidents. In these countries, compensation is dispersed either through courts or a compensation scheme pay-out for individuals that have suffered injury or death following vaccination. Even in India, consumer protection forums have considered and indeed ordered compensation for vaccine-related injuries and deaths in the past. However, an institutional apparatus similar to the US (which lists the nature of vaccine-related injuries that can be compensated under the National Childhood Vaccine Injury Act and requires the claimant to show a demonstrable link between the vaccine and the injury) can help provide a platform for vaccine accountability while at the same time evading frivolous claims.

Providing positive incentives for vaccination: Various countries seek to achieve their vaccination mandates by conditioning benefits, such as access to public/private services, on compliance with state vaccination requirements. Mandatory vaccination for enrollment in public schools falls within this category. However, rather than benefits, it is viable to condition incentives on compliance. For example, The Patient Protection and Affordable Care Act (ACA) of the United States requires insurers to fully cover the cost of recommended vaccines, relieving consumers of the entire expense of vaccination. The proposed administrative framework may contain additional incentives in order to discourage vaccine hesitancy in different subgroups in India.

Given the recent declaration of the WHO that vaccine hesitancy is one of the top 10 global health threats in 2019, and amidst the resurgence of measles outbreaks in different parts of the world, it is imperative that we start developing, implementing and evaluating measures to better address the complex problem of vaccine hesitancy. A well formulated and transparent administrative machinery can be a useful starting point for addressing this problem and fully realising the gains from immunisation in India. Moreover, the presence of such a framework can also act as a foundation for engaging in separate debates around the viability of individual consent vis-a-vis mandatory compliance with respect to legal/ administrative interventions designed to deliver public health goods.

### References

Gopichandran, Vijayprasad, Public trust in vaccination: an analytical framework, Indian Journal of Medical Ethics, 2017.

Kumar et al., Vaccine hesitancy: understanding better to address better, Israel Journal of Health Policy Research, 2016.

Nadimpally et al., An idea whose time has come: compensation for vaccine-related injuries and death in India, Indian Journal of Medical Ethics, 2017.

Jarret et al., Strategies for addressing vaccine hesitancy - a systematic review, Vaccine, 2015.

The author is a researcher at the National Institute of Public Finance and Policy. The author thanks Prof. Ajay Shah, Dr. Renuka Sane and Mr. Shubho Roy for their useful comments and guidance.

## Thursday, October 03, 2019

### Announcements

Azim Premji University, Bangalore and the National Institute of Public Finance and Policy (NIPFP), New Delhi are pleased to announce a new collaborative initiative, a workshop “Strengthening the Republic”.

India has completed more than seven decades as an independent nation and a constitutional republic. When India set upon this path it was seen as a brave unconventional path for a new post-colonial nation. Seven decades on, most political scientists would characterize India as a 'miracle' democracy - one that has defied extant political theory on constitutional survival and democratic transitions. However, too much of this Indian exceptionalism avoids careful attention to the specifics of Indian institutional design and the granularity of Indian institutional practice.

Indian academic scholarship in law, politics, economics and the social sciences more generally must invest considerable resources and intellectual energy in unpacking the institutional grammar of India’s success as a republic. The failure to do so may result in a misdiagnosis of our success while simultaneously failing to uncover the flesh and blood that has kept our institutional scaffolding in place. This seminar is dedicated to in depth empirically rigorous investigations into public institutions - legal, political and social - that enhance our common understanding and generate keen insight into their contemporary successes and failures.

Drawing on the high quality, interdisciplinary research work carried on by Azim Premji University and NIPFP, this workshop aims to generate active, sustained conversations and academic scholarship on themes related to the law, society and public institutions in India.

The workshop is designed to be an intensive, one-day session aimed at encouraging scholarship and debate among individual researchers, academics and practitioners belonging to disciplines like law, politics, economics and sociology to engage in thoughtful discussions with peers on pressing contemporary issues under these broad themes.

The workshop is being hosted by Azim Premji University and NIPFP in New Delhi.

### Format of the Workshop:

Interested applicants should submit an abstract of not more than 1000 words on topics of their interest under the broad themes. The proposals could be based on their ongoing research or new research that they would like to be engaged in. Two copies of the abstract, in word, pdf, LaTeX or any similar formats should be emailed to varsha.aithala@apu.edu.in, with details of full name, designation and employment/institutional affiliation of the applicant.

All abstracts will be reviewed by an independent jury selected by the organisers who will shortlist the abstracts based on relevance to the theme, novelty and academic merit. Authors of selected abstracts will receive an email notification of the exact date and venue of the workshop and should submit their completed research paper to varsha.aithala@apu.edu.in, by 15 December, 2019.

The workshop session will host five paper presentations from the shortlisted abstracts. Every paper selected for presentation will be allocated a committed discussant/ respondent.

### Illustrative list of papers:

The following is an illustrative list of papers that reflect the broad topics of interest and rigour of analysis that is expected of papers in the workshop:

1. Building State capacity for regulation in India by Shubho Roy, Ajay Shah, B.N. Srikrishna, Somasekhar Sundaresan. In Devesh Kapur and Madhav Khosla (eds.), Regulation in India: Design, Capacity, Performance. Oxford: Hart Publishing, 2019 (forthcoming).

2. Protecting Citizens from the State post Puttaswamy: Analysing the Privacy Implications of the Justice Srikrishna Committee Report and the Data Protection Bill, 2018 by Vrinda Bhandari and Renuka Sane. Socio Legal Review 14(2), (forthcoming).

3. How to Modernise the Working of Courts and Tribunals in India by Pratik Datta, Mehtab Hans, Mayank Mishra, Ila Patnaik, Prasanth Regy, Shubho Roy, Sanhita Sapatnekar, Ajay Shah, Ashok Pal Singh and Somasekhar Sundaresan. NIPFP Working Paper 258, March 2019.

4. Challenges of Competition and Regulation in the Telecom Sector by Smriti Parsheera. Economic & Political Weekly, Vol. 53, Issue No. 38, September 22, 2018.

5. Legislative strategy for setting up an independent debt management agency by Radhika Pandey and Ila Patnaik. NUJS Law Review, Volume 10, Issue 3, 2017.

6. Misled and Mis-sold: Financial Misbehaviour in Retail Banks? by Monika Halan and Renuka Sane. Journal of Comparative Economics, 45(3), August 2017.

7. Karnataka Crime Victimisation Survey: 2019 report by Sudhir Krishnaswamy, Asha Venugopalan and Varsha Aithala (forthcoming).

8. Commercial Courts in India: Three Puzzles for Reformers by Sudhir Krishnaswamy and Varsha Aithala (forthcoming).

### Other arrangements:

The presenter’s travel, accommodation and incidental expenses will be provided for by Azim Premji University.

We welcome proposals for research papers which are unpublished, recently published or of publishable quality in academic journals of international repute, though preference would be given to previously unpublished papers. The research papers may employ the reference and citation style used in standard social science practice, or the style used in legal periodicals. Simultaneous submission of papers to the workshop and other publications is permitted. Authors are expected to disclose any commercial or other associations that may result in a conflict of interest in connection with the research.

All submitted research papers will be published as open access working papers and available on the websites of both organisers. Organisers reserve the right to make editorial comments to the papers prior to publication.

### Important dates to remember:

• Deadline for submission of abstracts: 31 October, 2019.
• Deadline for research paper submission: 15 December, 2019.
• Workshop: 11 January, 2020 (Saturday).

## Tuesday, August 27, 2019

### Policy uncertainty in Indian e-commerce

by Megha Patnaik.

Reduced investment in India by private persons is a key part of the present growth challenge. Investment is shaped by macroeconomic uncertainty, sectoral uncertainty, and regulatory risks that firms face. In this article, we think about the risks that an E-commerce firm such as Amazon perceives in India. These include the changing FDI rules, unresolved issues of data localisation and code disclosure, the multiple reports on technology-related activities that various government agencies are releasing, and the problems of rule of law in licensing and investigation.

#### Economic policy uncertainty

Shrinking investment in the Indian economy is a concern. Investments in new projects fell to a 15 year low in the last quarter according to the Centre for Monitoring the Indian Economy (CMIE) Capex data which tracks large investment projects.

Firms are deterred from investing by policy uncertainty (Bloom, 2009). When firms are unclear about the future economic environment, they hold back on investing till uncertainty declines. This delays the pickup of the investment cycle, where firms generates jobs and business for linked firms, fueling aggregate economic activity. Uncertainty particularly affects long-term investments that are irreversible in nature, and for which horizons for cost recovery run into years. These can be investments in new technologies or market segments, or investments in infrastructure. Such investments are particularly important, as they can benefit other firms in the economy, fueling productivity and long-term growth in addition to their business cycle effects.

Private sector investment is adversely affected by three kinds of policy uncertainty - macroeconomic uncertainty, sectoral policy uncertainty, and regulatory risk. The role of Economic Policy Uncertainty at the macroeconomic level has been measured globally (Baker et al, 2016). In the original measure, an index is created by quantifying newspaper coverage of policy-related economic uncertainty mentions in the national newspapers, through combinations of keywords related to policy and uncertainty. Macroeconomic policy uncertainty has been applied to understand global events. Brexit-driven policy uncertainty in the UK moved closely with the GBP Real Exchange Rate in recent times, and the uncertainty surrounding US trade policy affected importing firms. This measure of macroeconomic policy uncertainty correlates strongly with stock market volatility.

Firms face much more than macroeconomic uncertainty. They also face uncertainty at sectoral, geographical and individual levels. Sectoral-level policy uncertainty can be measured through surveying firms sampled across sectors, asking them about expectations about future growth and costs at various horizons (Altig et al, 2019). For example, firms can report not just their expectations about future profits, but the distribution across the possible profit outcomes that they can expect.

An additional source of uncertainty that firms operating in India face is regulatory risk. Even when regulations are formulated, there is a lack of predictability, and excessive executive discretion, in how a stated regulation will be enforced. For example, the licensing by the RBI of 11 payment banks from 41 applicants who wanted to start payment systems was a non-transparent process inconsistent with the rule of law (Roy and Shah, 2015). Another example is the Copyright Board order of 2010 on statutory licensing fees paid by Radio stations. This order arose out of nine one-on-one disputes between radio stations and music producers, but was applied as an in rem order rather than an in personem order. Thus, music producers who weren't part of the original disputes also became governed by the order, despite the appeals by T-Series and SIMCA against the Copyright Board order applying to them. Aggarwal and Zaveri (2019) show the uncertainty induced for private persons through executive discretion in enforcement at SEBI.

#### Drivers of uncertainty in the E-commerce sector

In the recent Q2 earnings announcement, the Amazon CFO Brian Olsavsky mentioned uncertainty in India's e-commerce policy. He expressed hope for stable' and predictable' policy, for the company to continue with its investments in technology and infrastructure in India. This explicit mention about policy uncertainty in India is a unusual moment, and requires attention by policy thinkers. What is the uncertainty associated with investing in India, as seen by Amazon?

1. India's draft e-commerce policy rules earlier this year preventing firms from influencing prices or selling products in which they hold stakes disrupted business plans for e-commerce companies. It bring companies back to the drawing board to ensure they can comply with the current regulations while limiting losses that rose from lack of clear direction from the start. The final e-commerce policy has been held back for another year, putting existing investments of firms in this sector at risk during the interim months, and deterring further investments.
2. The uncertainty around data localisation is another deterrent. The recent announcement by a high-level government panel to do away data localisation for non-critical data, and the upcoming announcement of the position of the Prime Minister's Office on data localisation are policy announcements that drive sentiments on this debate, though none are legal instruments. Under data localisation requirements, companies would need to redesign internal algorithms to access data locally, pay up for new servers, and face costs to protect data in less-secure environments. The predictive power of firms' algorithms would weaken with fewer data points to train models on. The due process of discussions with various government bodies and stakeholders on this issue is still in process. The RBI's requirement for financial data localisation despite existing provisions (Bailey and Parsheera, 2018) for access under the Payments and Settlements Act (2007) suggest that any Indian regulator can step in with special requirements at unforeseen times.
3. A related issue is the disclosure requirement of source code under the draft e-commerce policy. E-commerce firms depend on data-driven marketing and use of collaborative filtering for customer recommendations. A code submission requirement is a coercive technique aimed at achieving the transfer of technology and local needs' described under the proposed e-commerce policy. Technology transfers cannot and should not be coerced: they happen in an organic and legitimate manner through managers and employees developing skills and passing them onward in data communities or by workers moving across companies (Bloom et al, 2019). It is also doubtful how technological transfers can be achieved with segments of code without underlying data. Will code disclosure requirement be combined with data localisation to pass on core business value to competitors? Will companies need to invest in staff and technologies to find workarounds to be able to mask their key assets? Whether such a code disclosure requirement will come into effect remains unresolved. In mid-2020 the final e-commerce policy will describe the stand of the government on this issue, but this is not definitive either.

Multiple guidelines on the same subject can cause delays in the resolution of uncertainty. The RBI Report of the Working Group on FinTech and Digital Banking includes E-aggregators, Robo advisors and Big Data all under Fintech. E-commerce firms, which are data intensive and provide multiple services, will be included under this description. The fintech steering committee report of the Ministry of Finance is still pending. Each of these reports is a statement about how government agencies are likely to move in the future but these are not legal instruments. Government reports can only suggest but not surely state how future laws will change.

Infirmities of the regulatory processes in India also exacerbates uncertainty. As an example, data localisation requirements by RBI for payments firms were translated from an early idea into an enforced law within a matter of days. There was no due process surrounding how officials could change the law.

The last leg of the legal system -- how laws are enforced -- also suffers from concerns about non-equal application of law, as shown in the examples from RBI (Roy and Shah, 2015) and SEBI (Aggarwal and Zaveri, 2019). For a prospective investor, the risk of investing in India lies in how the law might change in the future through an undemocratic process, and in how the law will be applied to her.

#### Conclusion

For India to have a stable investment environment, we need to provide firms a stable and predictable policy environment. Investments from firms in various sectors will boost the investment cycle for India. Resolving policy uncertainty both at the macroeconomic level as well as in different sectors, and reducing regulatory risk through better rule of law is critical for India in the current investment scenario as well as for long term growth.

#### References

Aggarwal, Nidhi and Zaveri, Bhargavi. Problems with evidentiary standards for proving securities fraud in India, The Leap Blog, 23 August 2019.

Altig, David, Jose Maria Barrero, Nicholas Bloom, Steven J. Davis, Brent H. Meyer and Nicholas Parker. Surveying Business Uncertainty University of Chicago Working Paper (2009)

Bloom, Nicholas. The impact of uncertainty shocks. Econometrica (2009)

Bloom, Nicholas, Erik Brynjolfsson, Lucia Foster, Ron Jarmin, Megha Patnaik, Itay Saporta-Eksten, and John Van Reenen. What Drives Differences in Management Practices? American Economic Review (2019)

Baker, Scott R., Nicholas Bloom and Steven J. Davis. Measuring Economic Policy Uncertainty. The Quarterly Journal of Economics (2016)

Bailey, Rishab, and Smriti Parsheera. Data localisation in India: Questioning the means and ends, The Leap Blog, 22 February 2018.

Roy, Shubho, and Ajay Shah Payment bank entry process considered inconsistent with the rule of law, The Leap Blog, 1 September 2015.

Megha Patnaik is faculty at the Indian Statistical Institute, Delhi and Fellow at the Esya Centre. The author thanks Radhika Pandey and Ajay Shah for useful inputs.

## Friday, August 23, 2019

### Problems with evidentiary standards for proving securities fraud in India

by Nidhi Aggarwal and Bhargavi Zaveri.

### Introduction

Did O.J. Simpson kill his wife? A criminal jury said no, a civil jury said yes. The standard of proof applied by the two juries made all the difference to the outcome of the case (Vars 2010).

In India, the securities regulator adopts a very low standard of proof for cases involving wrongdoing in the securities market. For many people, standard of proof related questions are procedural and semantic exercises in the dispensation of justice. However, the standard of proof adopted by a judge has direct impact on the outcome of the case and over time, the quality of the investigation conducted by the investigative agency. When the standard of proof is low, there is a high chance that initiating an investigation will induce an adverse order. This creates substantial discretion in the hands of the investigator, to choose the persons against whom State power will be directed. This runs against a basic theme of liberal democracy, of containing executive discretion. The ability of the executive to direct punishment upon chosen ones is inconsistent with the rule of law. It creates policy risk for persons who may consider participating in the Indian financial markets, and creates a bias in favour of participation by politically connected persons.

There are three reasons why the standard of proof in securities fraud cases in India are low. First, the Supreme Court has held that the standard of proof which SEBI must meet to establish securities fraud is the 'preponderance of probability' standard. This is lower than the standard of proof required to establish a crime under criminal law. In civil proceedings, there are usually two versions of the facts. The court, on the basis of the evidence before it, chooses that version which it thinks is 'more probable', that is, it will accept a version which a prudent man will act upon the supposition that it exists. On the other hand, in criminal cases, the prosecutors must satisfy the court that the existence of a fact is not only probable, but that its existence is beyond reasonable doubt. Simply put, the prosecution must satisfy the court that 'a reasonable alternative version is not possible' (185th Report of the Law Commission). Courts have explicitly acknowledged that it is not possible to mathematically define the degree of probability for meeting a certain standard of proof and there is an inherent subjective element within each of these standards. (State of UP v. Krishna Gopal and Anr.)

The other two reasons are inter-connected. SEBI exercises regulation-making, executive and quasi-judicial powers in connection with the securities market. It defines what conduct would constitute fraud for the purpose of exercising its enforcement powers. The concept of fraud under the SEBI (Prohibition of Fraudulent and Unfair Trade Practices) Regulations, 2003 (PFUTP Regulations) - a regulation that defines fraudulent conduct in the securities market - is wider than what is understood as fraud in common law and the codified law applicable to fraud in India. It dispenses with critical elements such as intent, deceit and damages. A wider definition of fraud sets the bar very low for establishing securities fraud before a court or tribunal. SEBI is also responsible for conducting investigations of suspected fraud and makes decisions on whether the conduct investigated meets its definition of fraud. This violates the constitutional scheme of the separation of powers that applies to areas of public administration which are not governed by a technocratic regulatory agency. As an example, the Indian Penal Code defines what constitutes theft, the investigation is conducted by the executive agencies and the decision on whether the investigated conduct amounts to theft (as defined in Parliamentary law) is made by the judiciary.

The concentration of all three powers in a single body creates scope for bias towards a lower standard of proof. Empirical work done on the cases investigated by the Securities Exchange Commission, the securities regulator in the United States, is indicative of such bias. The SEC is empowered to choose whether to pursue a proceeding before one of its own internal administrative law judges or an independent federal court. Reportedly, while the SEC enjoyed a 90% success rate in its own hearings, it had only a 69% success rate against defendants in federal court. (here and a perma link here)

In February 2018, a judgement of the Supreme Court further diluted the standard of proof for securities fraud in India in a case involving synchronised and reverse trades executed on the exchange. The Supreme Court reversed the decision of the Securities Appellate Tribunal which had held that although the trades in question might have been synchronised, they were not manipulative and "market manipulation of whatever kind, must be in evidence before any charge of violating these Regulations could be upheld." The Supreme Court dispensed with the need to show manipulation and relied on the notion of "market integrity" as a standard for adjudging the conduct of market participants. SEBI has extensive powers to sanction wrongdoing in the securities markets, such as the power to bar access to the market, suspend professional licenses and impose hefty monetary penalties. The Supreme Court's ruling has serious implications for the manner in which these powers are exercised as it effectively introduces a new standard of proof of 'market integrity' to be met by persons accused of securities market fraud.

### What is market integrity?

The notion of market integrity is both un-defined and hard to measure. World over, there is considerable debate on its meaning in the context of financial regulation (Austin, 2016). Given the subjectivity of the concept, using market integrity as a standard of proof is equivalent to using 'public interest' or 'public good' as a standard for establishing wrongdoing. It leaves tremendous scope for discretion and creates the potential for differential standards of enforcement across a range of practices, depending on the adjudicator's view of whether or not a particular trading practice affects market integrity. This creates uncertainty in the manner in which the law will be applied and enforced and has adverse implications for the rule of law. Ambiguity in the grounds of enforcement and the standard of conduct that could invite legal sanctions, is detrimental to the development of the market as well.

In this article, we advocate the use of empirical approaches for establishing wrongful conduct in the securities markets. We do this by demonstrating the empirical evidence that should have been used to support a claim of fraud in the very same case where the Supreme Court lowered the standard of proof by relying on the vague and problematic ground of market integrity. In a world of electronic trading, empirical evidence of fraud and its impact on the market is not hard to collect and investigators and courts must rely on such evidence instead of holding market participants to a vague and subjective notion of market integrity and unfairness, which the world at large is struggling to define.

### Judgement of the Supreme Court in Rakhi Trading

In February 2018, the Supreme Court in the case of Securities and Exchange Board of India v. Rakhi Trading Private Ltd. upheld an order passed by the Securities and Exchange Board of India (SEBI) that levied a penalty on some traders who had synchronised their trades off the exchange before placing them on the exchange. The trades in question were a series of orders placed on the F&O segment of the Nifty index. The modus operandi was to place an order for Nifty options, which matched with a particular party and subsequently reverse the position taken by placing an opposite order, which also matched with the same party. SEBI penalised the party placing such orders on the ground that these "transactions were in the nature of fictitious transactions resulting in creation of misleading appearance of trading in these options." The SEBI order did not elaborate the manner in which the synchronised trades sought to manipulate the price of either the option itself or the underlying securities, which in this case, was the basket of securities included in the Nifty index.

The parties against whom this order was passed appealed against the order before the Securities Appellate Tribunal (SAT). SAT confined its review to whether the synchronised trades in the F&O segment of the Nifty index artificially manipulated the underlying cash segment, which in this case is the Nifty index itself. It observed that:

"To say that some manipulative trades in Nifty options in the F&O segment could influence the Nifty index is too farfetched to be accepted. The only way Nifty index could be influenced is through manipulation of the prices of all or majority of the scrips in the cash segment that constitute Nifty."

This in line with precedent case-law laid down by SAT on the requirement to show manipulative conduct to demonstrate that the synchronised trades constituted fraud under the PFUTP Regulations. On an appeal by SEBI against this order of the SAT, the Supreme Court reversed the order of the SAT without explaining how the synchronised trades in question affected the price discovery system or created a misleading impression of volumes, but emphasised the notion of market integrity as under:

"According to SAT, only if there is market impact on account of sham transactions, could there be violation of the PFUTP regulations. We find it extremely difficult to agree with the proposition...SAT has missed the crucial factors affecting the market integrity, which may be direct or indirect (emphasis supplied) ...By synchronization and rapid reverse trade, as has been carried out by the traders in the instant case, the price discovery system itself is affected."

### The problem with synchronised trades

Synchronised trading involves pre-negotiating the trade off the exchange and subsequently placing the order on the exchange such that it matches with the counterparty with whom the trade was pre-negotiated. To synchronise trades on an exchange platform, the buyer and seller of the pre-negotiated trade will enter their respective orders at the same time (with same price and quantity) to maximise the chance of matching their orders against each other. To ensure that the order does not match against another counterparty, the first order may be placed away from the touch, that is, at a price significantly different from the ongoing bid / ask price.

By itself, synchronised trading is not a harmful practice. In fact, block trades for which exchanges have a block trading window are synchronised trades. It is difficult to synchronise trades on liquid securities on the exchange because such orders run the risk of matching against other counterparty(ies). However, even on relatively illiquid securities, synchronised trading is not risk-free. The probability of getting hit by another order (especially a market order) on the opposite side of the book is low, but not zero.

How can synchronised orders be used to manipulate the market? Synchronised trades could create misleading, artificial trading interest in a security. High volumes and significant price changes on an otherwise illiquid security may cause participants to believe that there is some news on the security. This may induce them to buy those securities based on unexplained changes in prices and volumes. This is especially possible in an illiquid scrip, which may be perceived to be suddenly liquid if a series of transactions are executed on such a scrip. While the SEBI order levying the penalty does not specify exactly what was manipulated, evidence of manipulation could be demonstrated in either or all of the following ways:

1. Manipulation of Nifty index: One way of determining manipulation in the Rakhi Trading case is by analysing the changes in the value of the underlying security, the Nifty index. The SAT order almost exclusively focused on the possibility of the synchronised trades having manipulated the value of the Nifty index. The order rightly concludes that price manipulation on the index can happen only if an equivalent position is taken on the spot market on all the 50 constituent stocks of the index. Neither the SEBI order nor the Supreme Court order show any evidence of a position by Rakhi Trading on the spot market. This leaves the scope of manipulation on the Nifty index value to the price transmission from derivatives market to the spot market. Empirical evidence on price transmission from derivatives market to spot market suggests that such transmission is subject to the liquidity of the derivatives instrument (see Fleming et al, 1996, Aggarwal and Thomas, 2019). We examine the liquidity of the relevant Nifty options and also examine if the volumes traded by Rakhi Trading in the options segment were significant enough to impact the value of the underlying Nifty index.
2. Volatility in option premium: Manipulation of stock price increases the volatility in returns on such stocks (Aggarwal and Wu, 2006). If the synchronised trades on the Nifty options were manipulative, we would expect that the real price discovery process on option premium would be hampered, resulting in higher volatility in the premium of the Nifty options in question. This manipulation can be established by examining the volatility of the premium on the Nifty options on which the synchronised trades were executed.

### Size of the market for the relevant Nifty options

Rakhi Trading executed synchronised trades on 13 specific Nifty option contracts (hereafter referred to as "the relevant Nifty options") on four days of the year 2007, namely, on March 21, March 22, March 23 and March 30 (hereafter,"the event days").

We begin by a simple comparison of the liquidity and volatility of the relevant Nifty options on the event days and compare it with other days between March 15, 2007 and March 31, 2007 (hereafter, "non-event days"). Such a comparison should be the beginning of the court's enquiry when dealing with an order punishing a market participant for securities market fraud. Table 1 provides basic summary statistics on the traded volumes (a measure of liquidity) and volatility of the relevant Nifty options.

 Event days Non Event days Total Volumes Volatility Rakhi Trading Volumes Total Volumes Volatility (%) (%) Min 9,550 0.97 2,000 50 0.10 Mean 26,142 6.19 10,015 7,712 2.25 Median 25,750 5.08 10,700 3,925 0.37 Max 38,600 14.85 11,900 50,050 17.62 SD 7,752 3.86 2,477 10,718 4.39

The key observations from Table 1 are as follows:

1. First, the traded volumes of the relevant Nifty options fluctuated significantly on a daily basis on the event and non-event days, ranging from 9,550 to 38,600 on the event days, and 50 to 50,050 on the non-event days.
2. Second, in comparison to the average daily traded volumes on a liquid Nifty option, Table 1 shows that the relevant Nifty options were relatively illiquid. For a frame of reference, the maximum traded volumes on one single Nifty option in March 2007 was 9.2 million.
3. Third, the volatility (measured by the Parkinson's range measure) of the relevant Nifty options was in the range of 1-15% on the event days, while it was in the range of 0-18% on the non-event days.

### Did the synchronised trades manipulate the Nifty index?

Table 2 gives a picture of the size of the overall Nifty options market on the event days and compares it for non-event days based on traded volumes. It also shows the traded volumes of the stocks which constitute the Nifty index for these dates. The last column of the table shows the volumes and contracts traded by Rakhi Trading on the event days to provide a perspective on the possible influence of its trades on the overall options and underlying spot market.

Table 2: Size of overall Nifty options market and proportion of synchronised trades
Non-event
days
All Nifty Options Traded volumes (in
Rs. millions)
49,978 61,041 277
Contracts
(in 000s)
262
316
1.35
volumes (in Rs. millions)
36,228 37,932 NA

The key observation from Table 2 is that on the event days, the volumes traded by Rakhi Trading on the Nifty options were less than one percent of the average traded volumes on the stocks that constitute the Nifty index on the spot market. The minuscule proportion of the volumes traded by Rakhi Trading in the Nifty options market relative to the total traded volumes on the stocks constituting the Nifty index on the spot market, re-affirms the finding of the SAT that the synchronised trades executed by Rakhi Trading could not have possibly manipulated the underlying Nifty index.

However, Table 2 also shows that the volumes and number of contracts on the Nifty options segment on the event days were higher than on non-event days. This might or might not have been due to the synchronised trades executed by Rakhi Trading. In the next few paragraphs, we zoom in our analysis on the specific Nifty options which were involved in the synchronised trades executed by Rakhi Trading and examine if those trades did manipulate the individual options traded by Rakhi Trading.

To test the claim of manipulation of option premium, we examine the volatility of the premium of the relevant Nifty options, and compare it with the volatility of the premium of other Nifty options with similar liquidity. We call the former as the treated set, and latter as the control set. We identify the control set as the options on which the traded volumes were in the same range as that on the treated" set, to ensure comparability across the two sets. If there was indeed manipulation on the treated options, we expect the volatility of the treated set to be higher than that of the control set.

We obtain a total of 50 unique options in the control set which we compare with data on the treated set on the event days. Table 3 presents summary statistics on the volatility of the premium for the options in the treated set and control set for our period of analysis.

Table 3: Summary statistics on volatility of options premium on the treated and control sets (in %)
Treated Control
Min 0.97 0.25
Mean 6.19 4.78
Median 5.08 2.91
Max 14.85 35.17
SD 3.86 5.09

We observe that the average volatility of the treated set was slightly higher than that of the control set. However, a simple t-test of comparison of means of the treated and control set volatility shows that the difference between the volatility of the two sets is not statistically significant. In a regression analysis (not shown here), we also control for other factors that affect volatility of the option premium of the treated and control sets. We do not find any evidence of significant difference across the two sets even after controlling for other factors such as strike price, days to expiry, value and volatility of the underlying. The analysis finds that the price range in which the option premium varied for the treated set was similar to that of the control set. Thus, we find that the option premium on the Nifty options that were traded by Rakhi Trading was not manipulated.

### Did the synchronised trades manipulate the volumes?

We also examine the question whether the synchronised trades in the relevant Nifty options led to higher volumes in these options thereby creating a possibly misleading impression of volumes. For this, we analyse the traded volumes on the relevant Nifty options, after excluding the volumes arising out of synchronised trades themselves. We compare the traded volumes of the relevant Nifty options on the event and non-event days (Table 4). If the synchronised trades did result in higher trading activity from other market participants, we expect to see significant difference in the traded volumes on the event and non-event days.

Event days Non-event days
Min 0 50
Mean 5,342 5,170
Median 4,500 2,450
Max 15,400 21,350
SD 5,736 5,762

Table 4 shows that the traded volumes on the Nifty options involved in the Rakhi Trading case were, on an average and on a median scale, slightly higher on the event days compared to the non-event days. However, a statistical test (t-test) of the comparison of means finds no significant difference across the two sets. A regression analysis on the event and non-event set confirms this finding. This indicates that Rakhi trading trades did not lead to any jump in volumes in the options so traded.

### Trading for tax evasion or tax planning

An ancillary concern expressed by the Supreme Court was that Rakhi Trading conducted the trades in question for tax planning or avoidance. While this may or may not be true, the securities markets regulatory framework should not be used for punishing tax evasion. Cases of trades that SEBI has reason to believe were meant for tax avoidance, must be reported to the tax authorities, which is the appropriate forum for addressing questions of tax evasion. The objective of the securities market regulatory regime is not to deal with tax evasion, but to protect investors and develop the securities markets. More importantly, a regulator has scarce resources and dedicating investigative and adjudicatory capacity for dealing with tax evasion cases is not the best use of these resources.

### Conclusion

Our empirical analysis finds that the synchronised trades did not manipulate the underlying Nifty index, the premium on the relevant Nifty options or the traded volumes of the relevant Nifty options. However, we recognise that our analysis is limited to daily data. An analysis of this kind must be underpinned by examining the intra-day data around the time of synchronised trades. By using such data, the regulator can further make a case for whether the trades in question were indeed manipulative.

The objective of this article is not to establish the guilt or innocence of any specific market participant. By using publicly available inter-day trading data on the security involved in the Rakhi Trading case, we make a case for using empirical strategies to establish fraudulent conduct under the Indian securities regulatory regime. As demonstrated above, the advanced nature of the securities market infrastructure in India and the availability of data ensures that this is not difficult. The use of empirical evidence to substantiate charges of fraudulent conduct will ensure that enforcement orders pass the muster of the appellate forums without having to compromise on evidentiary standards for establishing guilty conduct. More importantly, backing enforcement with robust underlying evidence will help the regulator build the trust of the regulated and testify to the high standards of proof that our society should place for the deprivation of liberty.

### References:

Stock market manipulations by Aggarwal R and Wu G, The Journal of Business, 2006.

When stock futures dominate price discovery by Aggarwal N and Thomas S, Journal of Futures Markets, 2019.

What exactly is market integrity? An Analysis of One of the Core Objectives of Securities Regulation by Austin J, William and Mary Business Law Review, Vol.8(2), 2017.

Trading costs and the relative rates of price discovery in stock, futures, and option markets by Fleming J, Ostdiek B and Whaley R, Journal of Futures Markets, 1996.

State Of U.P vs Krishna Gopal & Anr 1988 AIR 2154.

185th Report of the Law Commission of India on a Review of the Indian Evidence Act, 1872.

Toward a General Theory of Standards of Proof, Frederick E. Vars, Catholic University Law Review, Vol. 60(1) (Fall 2010).

Nidhi is faculty at IIM-Udaipur and Bhargavi is a researcher at IGIDR.