Gains from messy regulatory footprints

by Amrita Agarwal and Ajay Shah. 

The traditional view

Regulatory architecture is the design of regulatory agencies as a block diagram with a box for each agency, a clear problem statement for each agency, and a set of definitions about how the agencies interact. In the analysis of regulatory architecture in India, we generally think there should be full clarity on the regulatory perimeter (what activities are regulated) and on the state agency that is vested with the relevant regulatory power (who regulates what). It is believed that regulatory arbitrage is a bad thing. Firms should not be able to choose the regulator that they prefer, and firms should not be able to opt out of regulation by going to the edges of a poorly defined regulatory perimeter. 

Consider the long journey to the Gold ETF (documented in Box 9.4 of Mistry, 2007). The Gold ETF was delayed by 5 years because all of the RBI, SEBI and FMC claimed jurisdiction over it. Reformers have long argued that regulatory architecture changes are required so as to eliminate such regulatory logjams. 

In the conventional Indian discourse, a clean block diagram has been prized (Roy et. al. 2019). It is felt that there should be a simple diagram and then everyone knows where they stand. The firms then organise themselves to go to the right state agency and civil servants do not waste time fighting turf battles. State power is unambiguously defined, for any aspect of the coercive power of the state, private firms have clarity on who wields that power, private firms have no agency on these questions, there is no regulatory arbitrage. For the field of finance, FSLRC offered such a clean block diagram (FSLRC, 2013). 

In this article, we explore limitations of this approach.

Dispersion of power

In the field of political science, the essential idea is that of dispersion of power, of checks and balances. The state performs better when power is contestable, when we `pit interest against interest' (Madison, 1788). Pure power becomes tyranny; checks and balances are the path to state capability. 

This is the motivation for separation of powers (split the state vertically between the legislative, executive and judicial branches) and federalism (split the state between union, state government and city government). These give dispersion of power. 

The checks and balances, the conflicts between these multiple elements of the state, is messy. But we get better outcomes out of this untidy mess than we would with concentration of power (and the associated clarity of who is in charge). 

There is an interesting analogy in urban planning. Jane Jacobs (1961) and James C. Scott (1998) have emphasised that a highly legible, master-planned city is rarely a thriving one. A good city is teeming with a million kinds of thoughts and actions. It is a great city, but it's not easily understood. By pursuing simplicity of control and the ease of achieving state legibility (Scott, 1998) and state control, we don't get to a good society. Ultimately, we are after a great society, not a powerful state. 

Three kinds of reasons favour epistemic pluralism in state building:

1. The world is complicated, and nobody knows what the correct state intervention is (Hayek, 1945). In this case, clearly handing over all the power to one state agency is less effective. It is better to have multiple different approaches by multiple agencies, which would yield more experimentation and diversity in the society. When one agency is doing something wrong, private persons benefit from having agency on going to another. Multiple agencies doing diverse things creates more knowledge as compared with one agency doing one thing.
2. Public choice theory shows us a causal pathway from greater power to reduced performance. When state personnel command more absolute power, there is a greater chance of going down pathways that suit the interests of the state and not the interests of the people.
3. Sometimes, there may not be a one size fits all regulatory strategy. There may be gains from having different government organisations approach things in diverse ways.

We should see the problem of agencies and their footprint in a more heterodox way. Instead of full clarity that all the power of X nature is to be wielded by Y agency only, and that all private persons must stand in line without flexibility or choice, would it help to have a greater blurring of the lines where multiple agencies overlap, including a role for fully unregulated arrangements? This could create better checks and balances. 

If this approach is taken, there would be more experiments of alternative pathways to performing state functions and multiple government organisations would learn from these experiments. The people would be less controlled, they would have more choice on how to behave (Tiebout, 1956). This would generate better progress when compared with a monolithic approach.

Example: Hedge funds

The government believes it adds value by doing consumer protection for mutual funds. One could think of a single government regulatory system doing consumer protection that applies to all funds. But we don’t have to think like that. By the time a customer is bringing Rs.10M to a fund, there is no need for consumer protection. 

This gives the `hedge fund' idea: The regulations must carve out a distinct industry, hedge funds, where the customer is obliged to bring in over Rs.10M. In India, we see this with the SEBI 2012 AIF regulations. This industry requires contract enforcement and prudential regulation (promises should be upheld, lying is not okay), and extremely large hedge funds can raise concerns about systemic risk regulation. But there is no case for consumer protection for hedge funds, which reduces the burden of regulation. 

Once this is done, there will be competition in the eyes of some customers between the less regulated industry (hedge funds) vs. the more regulated industry (mutual funds). If regulation for consumer protection creates value, then all customers will be attracted to mutual funds. But if there are flaws in the regulation of mutual funds, the hedge fund industry will grow. The presence of less-regulated hedge funds is a constant counter-point to the consumer protection that’s sought to be done in mutual funds. 

Example: Micro-prudential regulation vs. financial resolution

 Consider the universal problem of a state-run financial resolution mechanism, the US FDIC and its ilk, vs the micro-prudential regulator. This is a messy world! On one hand, the micro-prudential regulator is charged with coercing the firm in ways that put a cap on its failure probability. But at the same time, the resolution corporation lurks over the firm, and unilaterally chooses when to force the closure of the firm.

One might think: Is it cleaner to have only one organisation that does these things? E.g. RBI that does micro-prudential regulation and also calls the shots on bankruptcy? This looks clean but it actually works poorly. The problems lie in public choice theory. The micro-prudential regulator does not like it when financial firms go bankrupt: these events show micro-prudential regulation in a poor light in public. So it has an incentive to ignore the problem and pretend things are okay. Only a fully arms length financial resolution, that does not consult the micro-prudential regulator when making the final decision, can get the job done right. The correct design inherently creates tension between two distinct government organisations. 

Example: Company law in the US

Companies in the US can register in any state while operating in others. This creates competition between the company laws across states. This gives companies the ability to shop for their preferred legal regime. The state of Delaware has done well in modifying its laws and agencies so as to be more attractive to companies for incorporation, mergers & acquisitions, and exit. Some other states like Wyoming have followed this example and innovated on other aspects to provide a distinctive regime to attract companies. 

This approach has created a rich tapestry of natural experiments which reveal the efficient frontier of how company law should work (Romano, 1993; Fisch, 2017). If there had been a single mechanism of company law for the full country, there would be less empirical learning.

Example: The US banking system

Banks in the USA have a choice between a National Charter, a State Charter and a State Non-Member status. They can switch between these when they so desire. A multi-state Bank may switch to a National Charter under the Office of the Comptroller of the Currency (OCC). An innovative local-oriented bank may choose a State charter under the state’s banking department and the Federal Reserve. The threat of banks switching also reshapes the incentives of each regulatory agency, where excesses of power will lead to flight of the regulated to a certain extent. This gives better flexibility and checks-and-balances when compared with a single national bank regulation system. 

These benefits come with difficulties. Multiple alternative regulatory authorities (SEC vs. CFTC, OCC vs. Fed vs. FDIC) were part of a race to the bottom that led up to the crisis of 2008. In that period, Washington Mutual and AIG chose the under-resourced Office of Thrift Supervision (OTS) as its regulator. In response to the 2008 crisis, the Office of Thrift Supervision (OTS) was dismantled as part of the Dodd Frank Act (Granza et al, 2024).

Example: Recent thinking in Argentina

Javier Milei has emphasised that regulators are often captured by the existing players. Regulators obtain coercive power under the excuse of addressing market failure, but often use these powers in ways that hinder competition, creating a cosy profitable and less innovative equilibrium. One difficult pathway to address this is deeper regulatory reforms (akin to the FSLRC concepts of improving checks and balances and curbing the arbitrary power of regulators). Another pathway, that is being attempted in Argentina, is to subject the incumbent regulator and industry to the competitive pressure of alternative regulatory regimes. 

Milei’s Minister of Deregulation, Federico Sturzenegger, has argued that economic reform needs to identify many points where a bureaucrat or a union has the power to say "No" and introduce an alternative pathway where the market can say "Yes" without them. 

Towards these objectives, in 2023, the Amendment to the Civil and Commercial Code (Decree 70/2023) enforced a strict ‘freedom of contract’ settlement via their currency of choice - US dollars, cryptocurrency or even commodities. This gives choice back to the people and removes the monopoly of the local central bank for controlling local transactions or introducing cross border capital controls.

Similarly, the Fondo de Cese Laboral (Employment Severance Fund, Decree 847/2024) gives employers the choice to replace the traditional lump-sum expensive and uncertain litigation prone severance regulatory framework with a pre-funded predictable payout. This creates an alternative mechanism that firms in agreement with their labour union can choose to adopt if they feel it is superior in their context. This is playing out on the ground with each firm and labour union making their choice. 

It is too early to tell whether Milei’s reforms will succeed in restoring high economic growth to Argentina. But they illustrate the ideas of the present article: When faced with a monolithic incumbent regime, there is value in creating ambiguity and flexibility about the regulatory perimeter and the power of each authority.

Example: Charter cities, Hong Kong and GIFT City

While nobody planned it this way, the fact that the British retained control of Hong Kong in 1949 created the possibility of forum shopping for private persons. If communist China did well in certain respects, individuals and firms could choose to locate in China. But if British style liberal democracy worked well in certain respects, individuals and firms could choose to locate in Hong Kong. 

In the event, we know that Hong Kong worked out much better than China, to the point where it became an embarrassment for the CCP. But in the years where Hong Kong was a genuine alternative (roughly 1949-2015), it gave private persons a choice: to be ruled by one kind of government or another. The presence of this alternative made a major positive impact on China’s trajectory. The removal of this alternative has had an adverse impact on China’s trajectory. 

Paul Romer has extended this idea into a more general possibility of establishing `Charter Cities’ where first world liberal democracies run enclaves in poor countries, and then individuals and firms get a choice about what kind of government they prefer. 

Potentially, GIFT City can evolve towards a more first world governance style, and then it would become a counterpoint to conventional Indian thinking on how financial law and regulation works. From this perspective, the role that has been given to incumbent regulators in the governance of GIFT City represents a limitation to the possibilities of GIFT City emerging as a competitive rival to mainstream Indian state mechanisms on financial economic policy. 

In each of these three settings -- Hong Kong vs. PRC, Charter Cities vs. developing country host, GIFT City vs. conventional Indian financial economic policy -- we see the gains from multiple choices being available to private persons as opposed to a simple monolithic state, where the people are crushed, where there is no possibility of forum shopping.

Epistemic pluralism as a consideration in agency architecture

Simplicity and clarity of a block diagram, a complete and unambiguous regulatory perimeter, the lack of turf battles: All these are appealing in the yearning of the state for more power. They fit well with a high-modernist desire for social engineering, to rearrange society in a way that increases state legibility and looks logical. But they come at the cost of epistemic pluralism. 

State personnel and agencies perform better when their power is lower, when there are greater checks and balances. The society works better when there is more freedom, when the people are placed under weaker state power, when the people have more choice. It is better to envision a world where the people have more of a say in who will regulate them and how. 

We fully recognise that this can be messy. Forum shopping can become a race to the bottom with private firms choosing the least burdensome regulation, creating incentives for government organisations to deregulate even when wise state action is required to address market failure. The messy arrangement will involve bigger payments to lawyers, and turf battles between government organisations. But we should simultaneously see the limitations of monolithic power. There is merit in careful choices that create some amount of a mess. 

Practitioners do not see this in a strategic way. It is typical for an exasperated private firm CEO to say "Just tell me who's my feudal lord, and I will figure out how best to optimise under that structure of state coercion". But public policy thinkers need to play at a different level. We need to ask: How can state power be organised in a way that gives greater possibilities for private persons to innovate and obtain economic growth?  

What we need is not a simple insistence on monolithic power. What we need is a sophisticated conversation on conditions under which we get a race to the top (more like Delaware) as opposed to a race to the bottom (more like the US Office for Thrift Supervision). 

It is easy to criticise the US financial system as a sequence of disasters from LTCM to Lehman. But it is also important to see that the US has the highest per capita GDP in the world. There is a connection between the freedoms of the United States -- which come with difficulties -- and the immense success of the United States. The same financial system that failed with crises from LTCM to Lehman is the financial system that innovated, invented most of modern finance, and funded innovators and risk-takers that made the United States what it is today.

 In India, we come from the other extreme: from the presumption of state power and low freedom. It would be useful to step back from the yearning for complete state power. A world with more checks and balances looks messier, but it is generally more conducive to a good society and economic success. 

Introducing greater ambiguity around the regulatory perimeter is an important third pathway for economic reform, in addition to the traditional twin engines of (a) Deregulation, of removing state interference on problems where there is no market failure and (b) Putting the cladding of checks-and-balances and the rule of law, upon state agencies that do wield coercive power. 

The field of regulation is far from figured out. On a global scale, regulators first came about less than 100 years ago in the United States. Here in India, it is only from the late 2000s that a conceptual understanding of regulators started emerging in the intellectual community. The world is complex, state capability is low, most state coercion in India is riddled with mistakes. A big journey lies ahead, both in India and elsewhere, to find the goldilocks zone, of addressing some market failure but avoiding the excesses of state power ranging from central planning (government control of products and processes) to corruption. One ingredient that we in India need to add to our regulatory philosophy is humility, the desire for epistemic pluralism.

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How Indians rank their rights: what 26 interviews tell us about Article 19 and property

by Prashant Narang.

Citizens treat property as the material anchor that makes other freedoms meaningful; livelihood-enabling freedoms are prioritised, while free speech is cherished but policed asymmetrically.

In 1978, the Forty-Fourth Amendment removed the right to property from the Constitution's catalogue of fundamental rights. Lawyers and economists have debated the implications ever since. But do ordinary citizens internalise that demotion? This post introduces our Socio-Legal Review note - co-authored by Sehar Abdullah, Keerthana Satheesh, and Prashant Narang- which steps outside the courtroom to ask a simple question with big policy consequences: which rights do people treat as most important in their daily lives - and why? Drawing on 26 in-depth interviews across professions that are especially sensitive to rights restrictions (journalists, migrants, MSME owners, cab drivers, farmers, artists, street performers and more), we map how citizens rank the Article 19(1) freedoms alongside the right to property. The top-line finding: people continue to see property as foundational - often the precondition that makes other freedoms meaningful.

What we did

We used purposive and snowball sampling to reach respondents aged 19-65 whose livelihoods could be directly affected by limits on speech, association, movement, residence, profession, or on property. Most interviews were conducted in Delhi, with additional remote interviews in Kerala, Chennai, and Bengaluru. We piloted the instrument, then ran a three-part interview: background and demographics; general views on freedoms and "reasonable restrictions"; and case studies with graded constraints (for example, permits and bans; "public order" versus epidemic) to elicit trade-offs. Transcripts were thematically coded. This is qualitative research; insights are directional, not population estimates.

What we heard: the lived hierarchy

• Property as cornerstone - Across backgrounds, respondents described property as livelihood, security, and autonomy "a means to earn a living", as one farmer put it. People resisted permissions on buying and selling land and were most animated by compulsory acquisition scenarios. Support for acquisition often hinged on compensation: market-linked and predictable when the purpose was clearly public (for example, a metro), with sharper bargaining when it looked commercial (for example, a mall). The underlying intuition is economic: when property underwrites household security, the perceived risk of under-compensation looms large.
• Economic freedom as a gateway - Freedoms that enable livelihood - movement and residence for migrants (Article 19(1)(d) and (e)) and choice of occupation (Article 19(1)(g))- were consistently prioritised. A photojournalist linked movement directly to earning; an activist framed profession and property as part of a single "socio-economic" relationship that the state should ease rather than police. This fits a law-and-economics intuition: secure property and open markets reduce dependence and expand feasible choices, which then support speech and association.
• The free-speech asymmetry - Respondents valorised free expression for themselves - journalism as "the fourth pillar", bans as "the end of democracy" - but many were readier to restrict others, often using elastic notions of "harm" or "extremism". In short: pro-speech for me, pro-restriction for you. That asymmetry is a legitimacy warning: broad, vague grounds for curbing speech match the public's weakest intuitions and risk becoming catch-alls.
• Residence as identity - The right to reside and settle anywhere (Article 19(1)(e)) surfaced as a surprising anchor of national belonging. Several interviewees described the ability to live anywhere as central to Indian diversity - inking mobility to both opportunity and citizenship.

Why this matters for policy design

• Compensation design - Where acquisition feels commercial, citizens bargain harder and distrust adequacy; where purpose is plainly public, opposition is more about predictability than principle. Legislatures and agencies should therefore tighten "public purpose" definitions and commit to clear, market-linked compensation formulas (benchmarks, indexation, relocation assistance) and process timelines that reduce uncertainty rents and litigation.
• Targeted deregulation for livelihood rights -Frictions on movement, residence, and small-enterprise activity (permits, zoning that criminalises street vending, opaque lease and tenancy formalities) bite hardest on those who use these rights to earn. Policy wins lie in simplifying titles and transfers, digitising and time-bounding consents, rationalising vending, parking, and market rules, and reducing compliance steps for micro-businesses - exactly where our respondents located day-to-day pain points.
• Speech rules that travel well - The asymmetry we observed - tolerant for self, restrictive for others - suggests two drafting heuristics: (i) avoid vague grounds like "offence" without a tight harm standard, and (ii) pair restrictions with necessity-and-proportionality tests that officials must evidence ex ante. Narrow tailoring not only protects rights but also matches citizens' strongest defence of speech (for themselves) while tempering expansive instincts to curb others.

What this does not claim

This is a qualitative, urban-skewed sample. We do not estimate a numeric hierarchy or claim causal links between income and preferences. Our aim is to surface design hypotheses and legitimacy risks that can be tested at scale and used now for better drafting and implementation. Rural and longitudinal work are obvious next steps.

The big picture

Constitutional amendments can change a right's formal rank without changing its everyday salience. In our interviews, property remains the backbone of autonomy and a hedge against shocks; livelihood-enabling freedoms are the everyday workhorses; and speech is cherished but policed asymmetrically. For policymakers and drafters, the take-away is practical: align legal categories and procedures with how citizens actually use and trade off rights. That means predictable compensation and acquisition processes; frictions-down reforms for movement, residence, and micro-enterprise; and narrowly tailored, evidence-based limits on expression. This is the path to a constitutional order that people recognise in their daily choices - not just in the statute book.

Read the paper

Rights in the Eyes of the Beholder: The Lived Hierarchy of Rights in India's Democracy - Socio-Legal Review, 21(1), 2025. Authors: Sehar Abdullah, Keerthana Satheesh, and Prashant Narang.

Prashant Narang is a researcher at TrustBridge Rule of Law Foundation.

A Score Card for Pre-Legislative Consultation

by Mallika Dandekar and Antaraa Vasudev.

In 2014, the Ministry of Law and Justice published the 'Pre-Legislative Consultation Policy of 2014', the policy aims to create a framework for effective participation in lawmaking. This policy encouraged Ministries and Departments at the State and Central Levels to proactively publish and seek feedback on draft laws and policies.

Pre-legislative consultation, if implemented to its full potential - is a crucial tool in removing the democratic deficit in law formulation and regulatory functioning. Pre-legislative consultation (or public consultation as is commonly referred to), refers to the process of publishing a draft regulation or legislation for public comment for a period of time to gather feedback from practitioners, academics and the lived experiences of citizens impacted by the law. Consultation leads to further deliberation on the instrument, and re-drafting of certain clauses as needed.

While one may make the case for faster lawmaking, consultation if implemented correctly highlights the practical constraints of a law or policy document, which may not otherwise be visible to an administrator, without adequate input from those impacted by the instrument.

While India's history of consultation (particularly among Parliamentary standing committees and regulators) is long standing - the process continues to be viewed largely as a qualitative or unstructured process to be implemented. This poses challenges as it enables a great amount of discretion in consultation methodologies, and subsequently the input that informs the policy.

The subject of Pre-Legislative Consultation has garnered significant traction in Parliament since 2014. Member of Parliament - Supriya Sule proposed the private member bill the 'Pre-Legislative Consultation Bill, 2019', another private member bill was introduced byMember of Parliament - Jagdambika Pal, titled the 'National Consultation Commission Bill, 2019'. The Finance Minister in budget speeches of 2023-24 and 2025-2026 emphasised on the importance of regulatory consultation and impact assessment. More recently RBI, PFRDA and other regulators have made significant strides in codifying the process of consultation. Borrowing from these examples, as well as international best practices - Civis has aimed to devise a robust methodology to assess and evaluate the procedural integrity of India's pre-legislative consultation methodologies across Central, State Governments and regulatory bodies.

What follows is an exploration of the methodology devised to assess consultations, and an open invitation to assist with contributing to and enhancing the methodology. Annually, these parameters are used to assess consultations culminating in a platform to share recognition with those who excel in implementing the process - an initiative known as CIPCA (Civis' Public Consultation Awards).

The 10-Criteria Matrix of the Methodology:

Building upon a robust theoretical and practical foundation, Civis has codified a methodology. This framework combines academic standards and best practices with Civis' practical experience in fostering public engagement. The core of this methodology is a 10-criteria list, organised under four overarching analysis metrics, designed to provide an assessment of any public consultation.

The methodology to assess public consultations relies heavily on India's 2014 Pre-Legislative Consultation Policy, the United Nations Public Consultation Index, OECD's Practitioners Handbook on Public Consultation, and inputs from our jury of practitioners involved in the awards in 2024 and 2025.

A. Quality of Consultation Document

The first set of matrices assess how effectively the government's document presents the proposed policy for public feedback, focusing on its clarity, comprehensiveness, and accessibility.

1. Justification:This criterion looks at whether the consultation document clearly articulates the rationale behind the proposed policy or legal change. Is the problem it seeks to address defined well, with the context in which it is being proposed, including relevant background, existing issues, and the objectives it aims to achieve? A strong justification helps citizens understand the 'why' behind the proposal, enabling more informed and relevant feedback. Assessing the justification required qualitative assessment of the Consultation document. The jury across the first and second edition has retained this criterion as its original conception.

   This criterion is borrowed from the Pre-Legislative Consultation Policy, particular Section 2 that reads "The Department/Ministry concerned should publish/place in public domain the draft legislation or at least the information that may inter alia include brief justification for such legislation, essential elements of the proposed legislation, its broad financial implications, and an estimated assessment of the impact of such legislation on environment, fundamental rights, lives and livelihoods of the concerned/affected people, etc". This section has also helped shape the next 3 criteria, as detailed below.

2. Essential Elements: This criterion looks at whether the proposed changes, new provisions, or key components of the draft are clearly outlined. Citizens should be able to easily identify and understand what exactly is being proposed, and its key features. These include any proposals being made, key rights and penalties, or any other government intervention or policy decision. The qualitative test is to discern whether these proposals are clear, with no room for ambiguity.

3. Impact Assessment: Has the potential impact of the proposed draft, including financial, social, environmental impact, been analysed and stated within the document? The third criterion looks at this issue in great detail. Transparency about potential impacts, both positive and negative, is crucial for citizens to assess the draft's broader implications and offer feedback after considering these effects. In edition one of the awards, the impact assessment was calculated uniformly across the financial, social and economic impacts flowing from the policy and whether it was articulated. This was an extremely subjective process, validated by each level of deliberation.

   However, as we evolved the criteria for the second edition through fresh deliberations with the jury, it led to a demand for increasing the granularity and detail in how this criterion was evaluated. Hence, we sought support from the Trustbridge Foundation, and the team led by Dr. Renuka Sane, who further refined this criterion to include 25 sub-questions that were answered to arrive at the overall score.

4. Comprehension: This criterion asks the question of whether the draft can be easily understood by an average reader, even if they do not possess specialised domain expertise? This criterion qualitatively evaluates the document's readability, clarity of language, and overall user-friendliness. Is the language unambiguous, avoiding jargon where possible or providing clear explanations for technical terms? Complex technical concepts should be simplified or accompanied by clear explanations, and the document should be free of excessive jargon or overly academic prose.

   In addition to Section 2 of the PLCP, it also follows on the heels of Section 5 of the PLCP - "Every draft legislation or rules, placed in public domain through prelegislative process should be accompanied by an explanatory note explaining key legal provisions in a simple language".

B. Scope of Engagement Opportunities

These matrices evaluate the breadth and effectiveness of the consultation's reach and the opportunities they provided for stakeholders to engage.

1. Duration: Here, we looked at whether a consultation is open for a reasonable period, allowing sufficient time for stakeholders to review the document, understand its implications, and prepare their feedback. An inadequate consultation period can severely limit participation and the quality of feedback. This criterion is derived from Section 2 of the PLCP which reads: "...Such details may be kept in the public domain for a minimum period of thirty days for being proactively shared with the public in such manner as may be specified by the Department/Ministry concerned".

   Across the two editions, the manner of scoring this criterion has evolved through deliberations with the jury. In year one, a more granular approach was adopted, similar to the other criteria, where a range of scores from 1-5 were applicable on a sliding scale based on the number of days a consultation was open for. This looked like:

   • Consultations that gave less than 20 days were marked a 1,
   • Those that allowed between 20 to 29 days were given 2 points,
   • Those that met the PLCP criteria of 30 days exactly received 3 points,
   • Those that allowed for 30 to 59 days received 4 points, and lastly,
   • Those that allowed for 60 days of more for comments received a full 5 points.

   However, the jury in the second edition recommended moving to a binary approach, where only two quantitative scores were possible: 1 for any consultation open for a duration under 30 days, and 5 for any consultation open for 30 days or higher. This was a deviation from our first edition, and it reflects the duration provision contained in the PLCP. In order to have a binary scoring, but not conflict with the scale on the rest of the criteria, 1 and 5 were chosen as the binary scoring indicators.

2. Outreach: Here, we consider if the outreach was comprehensive and diverse through various media and channels to ensure the consultation reached a broad range of relevant stakeholders and the general public. Effective outreach goes beyond merely publishing on a government website; it involves active dissemination through different platforms (e.g., print media, social media, community forums, targeted invitations) to maximise visibility and encourage participation. A compilation of all consultation outreach helped score the efforts undertaken by the relevant department.

   The criterion is derived from Section 3 of the PLCP which reads "Where such legislation affect specific group of people, it may be documented and disclosed through print or electronic media or in such other manner, as may be considered necessary to give wider publicity to reach the affected people".

C. Inclusivity

This set of matrices focuses on ensuring that the consultation facilitated diverse participation and equitable access for all citizens, regardless of their background or location.

1. Feedback Collection: The criterion considers whether multiple, accessible avenues were provided for stakeholders to submit their responses and feedback. This includes online portals, email, postal addresses, and potentially public hearings and interviews. Offering a variety of channels ensures that citizens with differing levels of digital literacy or access can participate effectively.

   This criterion builds on the principle outlined in OECD Practitioner's Guide on Stakeholder Consultations, which recommends evaluating consultations on the "transparency of the process and accessibility of the consultation, e.g., was there an equal opportunity to take part, was the process easily understood by stakeholders".

2. Translations: Here we considered if the consultation document translated into regional languages is relevant to the target audience. In a linguistically diverse nation like India, providing materials in national and local languages is paramount to ensuring true inclusivity, allowing citizens to engage with the content in their mother tongue and participate meaningfully. In addition, braille and sign language transcriptions have also greatly aided the accessibility of some drafts.

   Translation and accessibility of policy documents across languages is emphasised in OECD Practitioner's Guide on Stakeholder Consultations. The Guide recommends that consultation bodies "assure clear and plain language drafting, including in translations".

   Through deliberation, jury members concurred that English and Hindi translations for consultations with a national scope, and English and 1 regional language for a consultation with a regional scope would be scored quantitatively.

D. Open Governance

This final set of matrices examine the transparency and responsiveness of the consulting body throughout and after the consultation process.

Both transparency and responsiveness were created as qualitative criteria on the recommendation of the jury members on our inaugural edition of the awards. These criteria aim to highlight the importance of the completion of feedback loops and providing publicly accessible data, which are higher order asks - but extremely important to determine the responsiveness of policy making.

1. Transparency: Did the consulting body provide a report, a summary, or publish the responses received (in part or in entirety) after the close of the consultation period? Transparency in feedback processing is vital for accountability. It demonstrates that public input was received, analysed, and potentially influenced the final policy, fostering trust between citizens and government. It is also aligned with existing PLCP sections like Section 6 "The summary of feedback/comments received from the public/other stakeholders should also be placed on the website of the Department/Ministry concerned". Additionally, elements of this were also derived from a public consultation index created by UNDP (Page 16 of ASSESSING PUBLIC PARTICIPATION IN POLICY-MAKING PROCESS).

2. Responsiveness: The question to be considered here was if the consulting body is responsive to communications made through letters, RTIs, or other means by citizens or civic organizations.

   Responsiveness demonstrates that the government is open to dialogue and willing to address queries and provide information after the consultation process, reinforcing trust and encouraging future participation. Adding to transparency, responsiveness creates an additional avenue to allow government departments to publish and share information regarding the consultation process, i.e. even if they are not shared on their public websites and notices, they are open to sharing this information when specifically requested.

Application of the Methodology - Draft Kerala IT Policy 2023:

To better understand the methodology, we examine the Draft Kerala IT Policy 2023, ("Draft Policy") and through it explore how the methodology to assess Pre-Legislative consultation in India can be improved upon.

The draft policy in question received an overall score of 37 out of a possible 50 on the scale, translating to a 74% effectiveness rating in the last edition of the awards. In order to contextualise the draft as against other draft documents the mean and the standard deviation for the complete data set of 286 consultations has been calculated. This comparison is only illustrative, as the lawmaking procedures and maturity across State Governments, Regulatory Bodies and Central Legislators differ greatly.

This policy, released in September 2023, aims to be a blueprint for the state's IT sector growth and citizen well-being through digital technologies. We will integrate its performance against each criterion to provide a tangible illustration of Civis' methodology in action.

A. Consultation Quality - Draft Kerala IT Policy 2023

1. Justification: The Draft Policy scored outstandingly well (5/5) on this criterion. Sections 1.1 and 2.1 of the policy thoroughly state the need for an IT policy for Kerala. This is further supplemented by details regarding the state's and India's current IT infrastructure and the opportunities for Kerala to contribute to its betterment.

   The policy provides a clear background, detailing Kerala's historical strengths in IT (e.g., establishing Technopark in 1990) and the need for a new policy framework given global and national shifts in the digital landscape. It explicitly states its two-fold objective: leveraging IT, Electronics, and Space sectors for economic growth and adopting digital technologies for equitable, inclusive societal development.

   Mean Score: 2.74
   Standard Deviation: 1.49

2. Essential Elements: On this, the Draft Policy also received an outstanding score (5/5). Chapter II, titled 'Policy Framework,' meticulously lays down all essential elements, including 'Directions for Growth' (differentiating between economic and social development), 'The Enablers,' 'New Policy Framework,' and 'Policy Objectives.' Notably, section 2.2 explains the anticipated outcomes if the policy is implemented, showcasing forward-thinking and depth of thought. Furthermore, the policy addresses cybersecurity concerns through a dedicated section on 'Information Security' (Section 3.4) and discusses the augmentation of IT industry infrastructure via the development of four IT corridors in section 4.3.

   Mean Score: 3.73
   Standard Deviation: 1.12

3. Impact Assessment: The draft policy exceeded the average score here (4/5). The document effectively identifies the need for an IT policy in Kerala, backed by industry trends and growth potential. Stakeholder engagement and impact articulation are strong, as the Draft Policy incentives and investments for each business category separately. However, cost-benefit analysis and alternative strategies were not present explicitly, which was penalised. While implementation details exist, they lack clear timelines. Additionally, environmental impact, long-term evaluation, and rural integration were minimally addressed.

   Mean Score: 2.54
   Standard Deviation: 1.31

4. Comprehension: The policy also received a 4/5 for comprehension. The draft IT Policy is logically structured and emphasises inclusivity, innovation, and social equity. While it provides detailed objectives, strategies, and frameworks, its technical language may challenge non-expert readers slightly, but not significantly. Visual aids or summaries were absent which could have enhanced accessibility, and hence one point was lost. The document maintains clarity throughout, with no apparent contradictions.

   Mean Score: 3.28
   Standard Deviation: 1.03

B. Scope of Engagement Opportunities - Draft Kerala IT Policy 2023

1. Duration: The Draft Policy scored a 5/5 for its duration. The consultation period was from October 27, 2023, to January 31, 2024, for a total of 96 days. This significantly exceeds the recommended 30-day minimum, providing ample time for review and feedback.

   Mean Score: 2.85
   Standard Deviation: 1.23

2. Outreach: The Draft Policy received a 4/5 for its outreach efforts. The Government of Kerala extensively leveraged social media platforms, with posts found by Infopark, Technopark, and Kerala IT on X. Instagram posts were traced on Cyberpark Kozhikode and Infopark pages, and Facebook was utilized by Kerala IT, Technopark Trivandrum, Infopark, and Cyberpark Kozhikode. Several of these government undertakings also created awareness through their LinkedIn pages. The Draft was also available on the Kerala State Information Technology Infrastructure Limited (KSITIL)'s website. Furthermore, the erstwhile Secretary of the Kerala Electronics and Information Technology department utilized digital media to spread information about this policy.

   Mean Score: 1.49
   Standard Deviation: 0.80

C. Inclusivity - Draft Kerala IT Policy 2023

1. Feedback Collection: Here, the Draft Policy needed improvement (2/5). The Draft Policy did not mention any feedback collection mechanism. However, a webpage was created (https://itpolicy.startupmission.in/) to accept feedback in both English and Malayalam. While a digital portal was available, the lack of explicit mention within the policy document itself and potentially limited other traditional avenues for feedback impacted its score.

   Mean Score: 2.40
   Standard Deviation: 0.69

2. Translations: The Draft policy meets average expectations (3/5) in this category. The Draft is available in both English and Malayalam. This demonstrates a decent effort towards linguistic inclusivity, allowing a wider segment of the population in Kerala to access and understand the policy in their state language.

   Mean Score: 1.50
   Standard Deviation: 0.86

D. Open Governance

1. Transparency: The Draft Policy scored very low (1/5) on transparency. No published reports or public comments were found after the consultation period. Despite the general emphasis on e-Governance and proactive data disclosure within the policy, the lack of specific mechanisms for publishing feedback on this particular draft significantly impacts its score significantly.

   Mean Score: 1.59
   Standard Deviation: 1.20

2. Responsiveness: The Draft Policy exceeds expectations (4/5) in responsiveness. The Government of Kerala responded to Civis' RTI request and answered every question about the process individually. They also provided a list of all comments they received and shared that the final version of the document was not out yet, indicating that the consultation process still has the potential to yield changes to the policy. The criterion of responsiveness was only scored for the final 26 nominees, as data gathering for the full data set would be difficult. With that in mind, the scores for the 26 nominees are:

   Mean Score: 3.84
   Standard Deviation: 0.69

Conclusion

Codifying a methodology for assessment is the first step in building the legitimacy of the process of public consultation. Laying out a pathway for greater efficacy in consultations, and an enhancement of procedural trust in lawmaking as a whole.

The methodology outlined above works towards standardising a growing practice of consultation in India. However, there are unique improvements in consultative practices that we can look to from countries like Taiwan - which has institutionalised the platform vTaiwan, an open-source deliberative platform that brings together policy makers and citizens to deliberate national issues. Another example comes from the European Union's Regulatory Fitness and Improvement (REFIT) program which requires stakeholder consultation at all stages of policy formulation i.e., problem definition, solution identification, drafting, and evaluation.

While the domain of consultation is evolving, the authors invite scrutiny and feedback to enhance the parameters and measures of this methodology. With the aim of creating a practical and evolved framework for consultation evaluation and best practices in the country.

We invite suggestions on:

• Strengthening specific parameters of the evaluation framework.
• Defining the guardrails for what may constitute policy paralysis as opposed to constructive deliberation.
• Highlighting other consultative best practices which don't find mention in the methodology.
• Identifying national/international best practices that can be suggested to policy makers in the country.

Mallika Dandekar and Antaraa Vasudev are researchers at Civis.

Review of "The Rise of the BJP: The Making of the World's Largest Political Party" by Bhupender Yadav and Ila Patnaik

by Josh Felman.

In 2014, the BJP secured a remarkable victory. They won an absolute majority in the Lok Sabha elections, the first time any political party had done so in three decades. Then, five years later, they repeated this feat, increasing their majority. Now, they dominate the national landscape in a way not seen since the heyday of the Congress party, half a century ago.

How did this happen? Most analysts give a one-word answer: Modi. Others give a two-word answer: Modi-Shah. Without doubt, Narendra Modi and Amit Shah are exceptional politicians and strategists. But life is complicated, and great men cannot entirely determine the course of history.

One reason why the BJP won in a landslide in 2014 is that Congress completely mismanaged the economy. The party proved unable to deal with the fundamental problems that emerged after the Global Financial Crisis, such as the sizeable non-performing loans at the banks. Instead, they tried to resuscitate the economy through lax fiscal and monetary policy, a strategy which failed to revive growth, producing only double-digit inflation. Then came a spate of scandals, and the government became paralyzed, unable to do anything at all.

Even so, it is wrong think that the BJP was merely the accidental beneficiary of Congress' collapse. As this book stresses, the BJP has been rising for a long time.

Sometimes a picture is worth a thousand words. So consider the following chart. It shows that despite a notable dip in the 2000s, there has been a clear trend to the BJP's representation in the Lok Sabha. And that trend is upward. The BJP was formed in the 1980s, initially earning just a few seats. By the mid-1990s, it had become the largest party in Parliament.

How can we possibly explain this development? This book provides an answer. Not "the" answer, of course, but a particularly valuable answer, for the explanation comes from a BJP insider. Unlike most books written by politicians, this work avoids the intricacies of long-forgotten debates and refuses to engage in score-settling. Instead, this is a serious work, covering the entire sweep of independent India's history, documented with extensive footnotes -- exactly as one would expect from the co-author, who is a noted, non-political academic. (Full disclosure: I have also been a co-author with Ila Patnaik.)

The aim of the book is to explain how we have arrived at the current political pass. Of course, it does so from a BJP perspective. But that is exactly the need of the moment: we need to understand what the BJP believes, as these beliefs will translate into actions that affect all of us.

So, what explanation does the book provide? Essentially, it argues that the rise of the BJP stems from two factors: its organizational ability and its message. Of the first, the book makes a convincing case. Indeed, no reader – no matter what his or her political view – can finish this book without a sense of awe. It’s not just that the party has come up with one brilliant idea after another, such as "multiplying" their Prime Ministerial candidate by projecting 10-foot holograms of Modi in 200 cities across the country. Even more astounding is the BJP's ground game.

Consider the BJP's strategy for the 2014 election. The party developed a booth management strategy, under which leaders were assigned to every single one of the 1 million voting booths in the country. Each leader supervised around 50 individuals, whose job it was to meet with around 30 voters and convince 15 of them to vote for the BJP.

This arrangement required an incredible amount of effort, coordination – and manpower. Simple arithmetic shows that 50 leaders for 1 million booths required no less than 50 million party workers. For the 2019 election, the party mobilized 110 million members. How on earth did the BJP manage to convince so many people to work so hard for the party?

One strategy has been to convince members that they are part of a family. They even have a slogan for this: Mera Parivar, Bhajpa Parivar (My family is the BJP family.) In practice, this means that the life of a party worker is dominated by an endless calendar of events: campaigns, followed by political activities, interspersed with visits from seniors. Particularly strenuous efforts are made to nourish connexions amongst members from all strata of the party, with seniors being asked to share meals with workers on their visits to the regions.

Another strategy is to employ the highly motivated swayamsevaks (volunteers) of the RSS. The authors are unequivocal about the links between the RSS and the BJP. They emphasize that the predecessor of the BJP, the Jana Sangh, was founded with the explicit purpose of giving a political voice to the RSS' vision for India. And they note that the BJP was born when the leaders of the Jana Sangh were forced to choose between their commitment to the RSS philosophy and their political career in the Janata Party. They chose to stay true to their ideology.

The devotion to this ideology remains strong to this day. Prime Minister Modi has said, 'I am connected to the mission and not ambition. In my life, mission is everything, not ambition'.

So, what exactly is this mission? Put another way, if the second reason for the BJP’s success is that it has developed an attractive message, what exactly is that message?

In some areas, the book gives a clear answer. It says that right from the start the BJP has focused on the fight against corruption. Its first major success came in 1987 when it was able to pin the Bofors scandal on the Congress Party, accusing their senior officials of taking bribes in return for granting a large defence contract. In 2002, Venkaiah Naidu became BJP President partly on the strength of his credentials as convener of an anti-corruption movement in Andhra Pradesh. And of course corruption was a major theme of the 2014 election.

Another key element of the BJP mission, according to the book, is improving the standard of living of the poor, the people whom the Jana Sangh used to call the 'last man in line'. The Modi government came up with a particularly effective way of doing this, by providing the poor with tangible benefits such as LPG gas cylinders and toilets – and cash transfers, paid directly to newly created Jan Dhan bank accounts. These programs created a direct link between the party and the poor, earning in particular the loyalty of female voters.

In other areas, however, the book is much less precise. For example, we are told repeatedly that the BJP believes in "nationalism". But it is not clear what this means. After all, Congress is also a nationalist party; indeed, they led the independence movement against the British.

Some commentators claim that the BJP's nationalism is different because it is a communitarian vision, focusing on building a Hindu nation-state. The BJP strenuously denies this charge. Indeed, the word Hindutva is not to be found anywhere in this book. Instead, the BJP views itself as the party of true secularism, devoted to the principle that no group should be treated differently by the state. Accordingly, they oppose triple talak divorce and special status for Kashmir – because these policies treat different groups differently.

But this argument sits uneasily with the claim that the BJP believes in 'cultural nationalism'. The book takes great pains to stress that this phrase refers to an all-Indian culture, coming out of many traditions: Hindu, Muslim, even Western. But the only traditions the BJP has mobilized to defend – at least the only ones mentioned in the book are Hindu traditions.

Particularly striking is the framing of the dispute over whether to build a Ram temple on land where a mosque was standing. As the book puts it, for the BJP, Ayodhya was not a land dispute; "it was a mission to unite India with the thread of cultural nationalism". The argument seems to be that the country should have united behind this plan, since it honoured an important tradition, the place where Lord Ram was reputed to be born. But many people did not see things this way, and the dispute proved enormously divisive.

That said, the BJP's message of cultural nationalism does resonate with a significant section of the population, giving it a compelling message to go with its superb organization and millions of devoted members. That makes the BJP a formidable vote-getting machine. No wonder it has just risen and risen.

But history teaches that a relentless rise is often followed by a disastrous fall. Indeed, one doesn't have to look very far to see an example of this process at work. Right after independence the Congress Party bestrode the political landscape like a colossus, winning 364 out of the 489 contested seats in the first parliamentary election. But since the 1970s it has gradually decayed, to the point where it holds only 52 seats in the current Lok Sabha.

The BJP has thought long and hard about this example, concluding that Congress declined because it failed to nourish its roots during its long period in power. To make sure this doesn’t happen to them, the BJP not only pays considerable attention to sustaining morale amongst its party members (as already mentioned); it also takes great care to avoid the perils of dynastic leadership. The BJP offers a clear path for ambitious young supporters, who can start with party work, progress to a role in government, and then take up role of an elder statesman. To ensure that this career ladder is not blocked by elderly seniors, members are expected to step aside from active operational roles once they reach the age of 75. It will be interesting to see whether this practice continues, now that the party has a firm hold on power.

Beyond the constant need to replenish the party with new energy, the BJP faces another challenge, one that will be even more difficult to manage: it must meet the needs of the nation. Without doubt, the BJP has found a way to satisfy what we could call 'Cultural India'. But meeting the needs of Aspirational India, the hundreds of millions of young people looking to find good jobs and raise their living standards, will be a far more difficult task.

The current government is fully aware of this problem, having inherited an economy that was in shambles. Accordingly, it has implemented reform after reform, including Inflation Targeting, the Insolvency and Bankruptcy Code, and the Goods and Services Tax. But the economy has still failed to take off, as investment has remained stubbornly low.

So far, there have been no political consequences, as the public has accepted that it will take time to restore an economy that was in such bad shape when the current government arrived. But the BJP knows that at some point, the public will demand results.

Accordingly in 2020, the government decided to change tack, abandoning the post-1991 policy of opening up the economy in favour of a new approach, Atmanirbhar Bharat ('Self-Reliant India'), whereby tariffs are being increased to encourage import substitution while production subsidies are being given to firms selected by the government. It is still early days, but there is little in India’s history or that of Asia more generally that suggests this strategy is likely to work. In that case, trouble for the BJP may lie ahead.

For far too long, the nature of the BJP has remained a mystery to the English-reading public. Finally, we have an authoritative presentation of their point of view, one that allows us to understand better how the BJP has risen and what it believes. For anyone who wants to understand how India arrived at the current juncture – and where it is likely to go in the future – this book is a must read. Buy it and read it carefully.

 

Josh Felman is the principal at JH Consulting.

Does synchronization of elections matter? Evidence from India

by Vimal Balasubramaniam, Apurav Yash Bhatiya and Sabyasachi Das.

Many countries across the world hold elections for multiple levels of the government on the same day. Examples include the United States, Brazil, Sweden, South Africa, Indonesia, among others. Importantly, there has been an increasing demand to synchronize elections across tiers of governance in both Europe and India. In India, the Law Commission, and other bodies, highlight that elections are expensive and find that "holding simultaneous elections would be ideal as well as desirable". The implicit assumption in these discussions is that the question of when voters make decisions about their national and state representatives may not affect how they make these choices and consequently, the election outcomes that emerge from them.

In our research, we examine whether synchronized elections in India lead to significant changes in voter behaviour. We refer to an election in India as synchronized if the national election (or general election, GE) and the state election (or, assembly election, AE) occur on the same day. Otherwise, we say that the elections are non-synchronized.

Specifically, we ask the question how the probability that the same political party wins a seat at the Lok Sabha and the Vidhan Sabha changes when elections are conducted on the same day as opposed to on different days. For this, we compare the same assembly constituency over time with synchronized elections against those that happened on different days. For non-synchronized elections, we pair a national election with state elections that occurred after it and before the next national election.

We find that synchronized elections increase the probability that the same political party wins a seat both at Lok Sabha and Vidhan Sabha by 0.089, which is about 21% of the base probability of 0.42. One concern about interpreting this estimate as an effect due to synchronization is that a long time gap between national and state elections for non-synchronized elections may confound our ability to pin down a plausible causal interpretation of this estimate. We vary the time gap between the elections in any given pair of national and state elections from 150 days to 270 days, and our estimates range from 0.15 (for 150 days) to 0.082 (for 270 days). The estimates are, however, not statistically significantly different from each other. Our preferred specification is the one that limits the time-gap to 180 days -- an estimate closer to the lower bound that we find -- to account for qualitative reasoning that provides plausible exogeneity in the scheduling of elections.

Figure 1 below highlights the approach we take to this study with heat maps for the probability of the same party winning both the parliamentary and state constituencies without (Case 1) and with (Case 2) synchronized elections. Synchronized elections increase the probability of a political party winning both the Lok Sabha and Rajya Sabha seats. We show this for the ten states that fall within our sample for our preferred estimate. With the exception of Odisha – which has an opposite pattern – all other states in our sample present an increase in the likelihood of electing the same party.

Case 1: Unsynchronized Elections

Case 2: Synchronized Elections Figure 1: Prob (Same Party winning both PC and AC)

This significant consequence of synchronized elections may not occur in isolation. We characterize the voting environment and find that the winning margin in any given contest at a constituency is on average no different between synchronized and non-synchronized setup. However, there is an increase in turnout for national elections to level with the average turnout for state elections during non-synchronized elections. This suggests that the fraction that participates in state elections is in general much higher than in national polls.

We explore the potential channels that drive this significant effect of synchronization. We find that synchronized elections reduce split-ticket voting -- the Euclidean distance between the vector of vote shares of political parties in parliamentary and assembly constituencies is significantly lower in synchronized elections. This reduction in split-ticket voting could be both demand and supply-driven.

On the supply side, political parties could homogenize information sets and hold similar campaigns for the two elections when they happen on the same day. They could manage greater engagement with voters on the ground due to economies of scale with campaign resources during synchronized elections. Both these factors could align a voter to a single party. On the demand side, it may be that the cognitive demand to rationalize voting for two different parties in the two elections when they vote for them at the same time is high. This increase in decision complexity may give rise to voting for the same party when elections are synchronized. To explore these motives, we use national and state election survey data collected by CSDS for a representative sample of individuals compiled within two days after every election in India.

Panel A: Voters Decision

Panel B: Election Priorities

Panel C: Voting Consideration

Panel D: Election Issues Figure 2: Micro-data Evidence
We present the evidence from micro-data in Figure 2. We find that voters spend more time deliberating on elections when they are synchronized (Panel A), voters are less clear about objective functions for electing their representative for the two governments (Panel B). Additionally, we find that voters reduce the dimensionality of their choice by looking at political parties more than individual candidates (Panel C). Lastly, we find that voters are more ambiguous about the issue that matter the most for their choice of the vote (Panel D). These observations strengthen our claim that the cognitive challenges of choosing two candidates at once may not be a trivial constraint, especially in a parliamentary democracy where the elected representative matters to how the citizens voice their concerns to the state. And the objective function for the voter for the two elections is compromised with synchronized elections. Thus, we observe a rise in a simple solution of voting for the same political party during synchronized elections.

A critical reason for support to synchronized elections is the cost of holding elections. Holding elections on different days does have high electoral costs both for the governments to organize the elections and for the political parties to participate in them. The most recent General Election in India in 2019 cost Rs.5,000 crore or about 700 million USD.

Recurring elections not just imply more monetary cost but also the loss of governance time as politicians focus their time on campaigning and bureaucrats remain occupied with election work as opposed to implementing policies and public projects. The deployment of security forces away from their primary objective for electoral purposes also imposes further costs on the state. Lastly, the model code of conduct, it is claimed, affects public policy-making.

Such costs may reduce by holding synchronized elections had there been no impact on voter choice and decisions or on the real economic outcomes in India. Our results imply that a direct consequence of synchronized elections is synchronized representation. A growing body of work on political alignment provides mixed effects on real economic outcomes. Political alignment could increase the transfer of resources from the national government to subnational governments in India (Rao and Singh, 2003; Khemani, 2003). However, more recent work highlights that patronage networks and rent-seeking by local politicians may strengthen in politically aligned areas, leading to inferior public service quality. The development consequences of synchronized elections, therefore, are far from straightforward.

Our paper documents that when voters choose their representatives for Lok Sabha and the Vidhan Sabha matter to election outcomes. The administrative gains from synchronized elections, therefore, need to be weighed against benefits from voters evaluating different tiers of government without any overlapping ambiguity.



Vimal Balasubramaniam is researcher at Queen Mary University, London; Apurav Yash Bhatiya is researcher at University of Warwick, UK; and Sabyasachi Das is researcher at Ashoka University. This paper was presented at the APU-NIPFP workshop Strengthening the Republic, January 11, 2020.

Privacy, Aadhaar, Data Protection: Statist Liberalism and the Danger to Liberty

by Anirudh Burman.

Kings will be tyrants from policy when subjects are rebels from principle.

                                         - Edmund Burke, Reflections on the Revolution in France

Edmund Burke wrote these lines in a scathing critique of the demise of ancient traditions of allegiance, fealty and "dignified obedience" in the wake of the French Revolution. These lines today apply in a very different sense to the search for state-centred solutions to protecting privacy and personal data. The discourse over privacy, identification and data protection shows that liberal concerns with state power co-exists with a preference for state coercion in the name of furthering ostensibly liberal objectives. This discourse is marked by the absence of underlying liberal principles based on societal and associational freedom, and instead, repeatedly shows a preference for state coercion for achieving its ends.

This discourse and the policy responses to the same fail to address two fundamental questions: first, what does the right to privacy seek to protect? Privacy is treated as an end in itself, and this has significant ramifications on how we think about constituting liberty in our society. Second, what institutional and associational processes are necessary to protect privacy? Institutional and associational processes that rely overwhelmingly on state coercion are counter-intuitive and may ultimately harm individual privacy and autonomy.

I address three major strands of the privacy discourse that address different aspects of the right to privacy, but share a common problem: the discourse is framed in a manner that treats privacy as an end in itself. The result of the nature of this discourse is that state power to infringe on privacy seems to have strengthened rather than weakened. I begin with analysing the existing discourse on the debate over whether India's increasingly ubiquitous identification system, Aadhaar, violates privacy rights or not. I argue that by focusing on Aadhaar's constitutionality vis-a-vis the right to privacy and not examining the ends for which Aadhaar is being used, the existing debates fail to question the use of state power via Aadhaar and its implications for privacy and liberty.

The next major strand of the privacy debate, the judgement of the Indian Supreme Court in Justice K.S. Puttaswamy v. Union of India ("Privacy judgement") also treats privacy as an end, rather than a means to protect other ends. As I argue, the consequence of the judgement is to provide clarity for the use of state power with respect to privacy rights rather than to elucidate those aspects of social existence that need protection from the state through privacy rights. Data protection, and the Personal Data Protection Bill proposed by the Justice Srikrishna Committee is the third major strand of the privacy debate. The Bill also treats privacy as an end. In seeking to protect data as an end in itself, it confers a wide jurisdiction on the proposed Data Protection Authority. By doing so, the Bill gives the Authority the power to potentially surveil all data in India in order to, ironically, protect data privacy.

I argue that by treating privacy as a broad right and an end in itself, we have defined the role of privacy in society narrowly. Instead, privacy as a right has to be discussed in specific contexts such as marriage, sexuality, crime records and employment history. Each context reflects a different tension between a specific public interest and the privacy interests of specific individuals. Only such specific discussions on how privacy rights can help individuals protect their freedoms, can further the interests of liberty in our society.

Efficiency, Privacy and Aadhaar

In the decades since independence, Indian politicians and intellectuals by and large agreed on the need for a social welfare state. Specifically, a State that would strive to provide health, education, food, and infrastructure to its populace. Despite the mixed record of the State in achieving these objectives, the premise of what the Indian State should do has not been challenged to any substantial degree. While the State has withdrawn from running industries and fostered private markets over the past three decades, the assumption that welfare is a fundamental task of the Indian State has not been questioned. In fact, the welfare state character of the Indian State has been significantly expanded in the past two decades through initiatives such as NREGA and others addressing food security and debt relief.

A central task before a welfare state is identification, or what James C. Scott calls the quest for "legibility". The search for legibility is rooted in policy makers' inability to comprehend complex realities and their consequent search for symbols or markers that make society comprehensible or "legible" to them. For the purposes of the State, individuals must be defined primarily in terms of specific traits (e.g. age, education, residence, income, profession, ethnicity, caste, etc.) While this quest for legibility is not confined only to the state, no state can act on its welfare mandate without making individuals legible. Benefits are distributed to individuals based on how a state identifies them. Thus, if only "the poor" can avail of LPG subsidies, defining who is "poor" becomes of central importance. Aadhaar is the product of this search for better identification, required due to ever-increasing welfare and regulatory functions the Indian State has to perform.

In the decades before Aadhaar was implemented, the manner in which the state identified beneficiaries was critiqued as being deeply flawed. The systems were rife with documented instances of poor implementation and fraud. Additionally, many in need of what the welfare schemes sought to provide lacked the documents to prove their eligibility for the same. While concerted efforts were made to improve public distribution systems through initiatives like computerisation, significant exclusions continued to take place. These improvements were also unevenly distributed across state governments, and subject to sustained political commitment.

Any improvements in targeting/identification however, have remained subject to new political diversions and demands from the State. NREGA for example, was a new social welfare scheme that required the determination of eligibility on metrics that were different from say, traditional PDS schemes. It required the State to collect and maintain information about individuals based on metrics that the Indian State had not collected in a systematic manner prior to its introduction. Every new scheme that requires benefits to be conferred to individuals had and continues to have its own metrics for eligibility (Jan Dhan Yojana requires very different kinds of identification requirements than say, Start-up India).

The demand for better and different forms of identification therefore increase each time a new benefit has to be made available to individuals. If the state has to perform an ever-increasing number of welfare functions, it will require ever-increasing information about intended beneficiaries, as it needs to know whom to include and whom to exclude. Over time, therefore, the extent of information collected about individuals increases due to the numerous functions the state is required to perform.

This is not just confined to welfare measures. Any state action that intends to regulate individual conduct has to determine whom to regulate and on what basis. If, for example, persons with criminal backgrounds are to be excluded from contesting elections, the state needs to collect and analyse information about the criminal backgrounds of those contesting elections. If the state intends to regulate banking, it needs to collect information about banks and financial firms.

The increase in the collection of information for discharging the functions demanded from the state constitute the source of the concerns with privacy. The largest threat to individual privacy therefore comes not from the existence of Aadhaar, but from the ever increasing number of regulatory functions and welfare measures demanded of the Indian State. Problems of identification systems are downstream of these demands. State-centred solutions, and unprincipled welfarism pose a greater threat to individual privacy and liberty than any single identification system used by the Indian State.

This is borne out by a careful analysis of the main points of contention in the Aadhaar and data protection debate.

Aadhaar is a database that maintains bio-metric and other personal identification information about individuals. If a government or private agency wishes to verify the identity of an individual, the Unique Identification Authority of India (UIDAI), as the custodian of the Aadhaar database, enables such authentication through specified mechanisms. Aadhaar does not maintain records of what was authenticated. It retains a record only of when a person's identity was verified and by whom, not for what purpose.

Aadhaar is therefore more or less a value-neutral utility. In itself, it does not have a fixed use other than to identify individuals. It is up to the user (the government or private agencies) to use it as a means of identification for a specific purpose. Such use depends solely on its utility as an accurate system of identification. It does not pre-suppose what the system is going to be used for. Its raison d'etre is to enable the state to identify individuals accurately, if required. Its existence, in fact, promotes discourse on what it ought to be used for, and how it ought to be used.

When Aadhaar was conceptualised and being created, the state promised that the system would be used for identifying beneficiaries of social welfare schemes. This has however, not remained the case. From tax compliance to school admissions and new phone connections, the use of Aadhaar has extended well beyond social welfare purposes. It is, however, important to note that this growth is demand-led for the large part. Government departments and agencies, as well as private firms, are using Aadhaar because it is a largely accurate database compared to other mechanisms for verifying individual identity. State authorities and private agencies are mandating Aadhaar-based authentication because they see value in it, not because the UIDAI says they must. The alleged threat to privacy has therefore come about not because Aadhaar exists, but because the State chooses to use it for discharging the functions demanded of it.

Some detractors have argued that Aadhaar is unconstitutional as some individuals are unable to access social welfare benefits due to authentication failures. In many such cases, the implementation by these departments and agencies has been faulty. Aadhaar authentication requires a connection to the central Aadhaar database, and this becomes problematic in cases of poor internet connectivity. In such cases however, it is the user agencies that are at fault. Making Aadhaar authentication mandatory in remote areas with low internet connectivity is an example of poor planning and implementation. It is the use of Aadhaar that must be debated.

This and other issues have been brought up in a clutch of cases currently pending before the Supreme Court. The cases in the Supreme Court however lay the blame on the existence of Aadhaar rather than its uses. Additionally, of the many grounds of challenge, there are some that are simply not amenable to effective redress through judicial mechanisms. The first is the question of exclusions. Any system of identification is designed to exclude. The purpose of identification is to enable inclusion at the cost of exclusion. The danger is that of unintended exclusions. People should not be excluded from benefits that were intended to be made available to them. The detractors of Aadhaar claim that the implementation of Aadhaar is leading to arbitrary exclusions, with persons who were previously included now being excluded. However, one must distinguish between the role of Aadhaar in unintended exclusions, and the uses of Aadhaar leading to unintended exclusions. For example, if there were no scheme called NREGA being implemented, there would be no Aadhaar-related exclusions from NREGA. In such a case Aadhaar would continue to exist, but not be the cause of any exclusions in NREGA. Exclusions are occurring because there is a welfare function that the state is discharging.

Another point of detraction has been that of data security and data leakage. The claim is yet again, that because of its potential for misuse, the use of Aadhaar for seeding information about citizens creates a potential for misuse. However, any information that the state stores by aggregating data using some other central identification ID (PAN numbers, passport numbers, Voter ID cards, etc) is subject to the same potential issues. Any central identifier that could be used to link multiple databases is likely to suffer from similar issues. If PAN numbers or mobile phone numbers are used to aggregate data about individuals instead of Aadhaar, the same fear of profiling is still likely to exist. The problem is therefore not with Aadhaar, but with the process of profiling individuals. It is therefore necessary to problematise the issue of profiling, rather than the use of Aadhaar for profiling.

The discourse on these issues reflects undue focus on means rather than ends. It is important to distinguish between Aadhaar as an instrumentality of the state, and the purposes for which Aadhaar can be used. It is the latter that leads to privacy concerns, not the existence of the instrumentality itself. The same privacy concerns will remain tomorrow if Aadhaar is replaced by another system of identification. The Indian state will continue to violate individual privacy, liberty and dignity if the ends to which systems of identification are used are not carefully examined, questioned, and thought through.

Some of these issues require political solutions, others judicial ones. The judiciary can provide judicial answers to legal questions. It is not a forum that can provide answers to questions of efficiency. It cannot help society decide on what is the most effective method of identifying individuals while respecting individual privacy. This is a political decision that has to be reached through a political process. The judiciary can also not answer questions as to what are "good" methods of data aggregation and storage. These are technocratic decisions that also have to come from the political process.

This is due to the very nature of the judicial process which seeks blunt answers to blunt questions - "is Aadhaar constitutional or not?". Any path the Supreme Court takes to balance competing interests such as privacy versus efficiency will be, at most, a second-best alternative to what sustained political engagement could have created. The nature of judicial outcomes is to provide perfect legal certainty by ending political contestation with legal certainty. Judicial interpretations of constitutions have the effect of ending political and legal disputes, not to create space for further political negotiations.

Any future negotiation can only take place by treating the court's decision as a given. A good example is the spectrum allocation case, where the Supreme Court held that telecom licenses were arbitrarily allocated, and that future allocations can only happen through auctions (subsequently modified by the Supreme Court in another case). Any further discourse on the subject had to deal with the fact that spectrum had to be mandatorily auctioned, with no possibility of discussions over better methods of spectrum allocation. This is what happens in most cases that come before constitutional courts. In the judcialisation of Aadhaar, we may have lost a significant opportunity to negotiate politically and improve its functioning.

The nature of relief claimed from the Supreme Court in the Aadhaar case asks some legitimate questions that the Supreme Court is well placed to answer, particularly with respect to whether the law should have been passed as a money bill, and in which instances Aadhaar can be made mandatory. But it also asks many questions that do not help address the real concerns about privacy - if all identification systems lead to exclusion, in what circumstances is exclusion constitutionally impermissible? If all data aggregation systems are potentially vulnerable to leakage and theft, in what circumstances is data leakage unconstitutional? If all state welfare functions lead to some kind of profiling, what kinds of profiling are constitutionally impermissible? In short, what are the values that the right to privacy seeks to protect?

Privacy judgement: Clarifying the use of state power

If the expectation from the Supreme Court in the case of Justice K.S. Puttaswamy v. Union of India ("Privacy judgement") was that it would explain what underlying values the right to privacy seeks to protect, it was belied. While the Supreme Court bench that decided this case was constituted because the Aadhaar bench made a reference to it, this case itself did not decide on privacy rights vis-a-vis Aadhaar.

In a remarkable feat of judicial activism the Court not only declared that there is a fundamental right to privacy, but that this right is an end in itself. The leading judgement (given by 4 out of 9 judges) states that the purpose of the Court in writing the Privacy judgement is to expound upon the right to privacy by providing a "doctrinal formulation".

The judgement lists a series of Indian cases in which a right to privacy has been claimed. As the Court itself notes after discussing these cases, many past judgements have held that a right to privacy exists under the Indian Constitution. What then, one might ask, was the need for this nine-judge bench? The answer provided by the Court was,

"...The deficiency, however, is in regard to a doctrinal formulation of the basis on which it can be determined as to whether the right to privacy is constitutionally protected..."

The Court therefore intends to assert the existence of a right to privacy as an end in itself, rather than a means to an end. Unlike all previous cases the Privacy judgement itself notes, this judgement was written with no applicability to a specific dispute before the court.

A long line of jurisprudence listed in the Privacy judgement highlights the fact that privacy has always been used to protect a specific interest or value: In Kharak Singh's case, it was privacy in the context of night-time domiciliary visits. In RM Malkani v. State of Maharashtra and PUCL v. Union of India it was privacy in the context of telephone tapping. In Gobind v. State of MP, the discussion on privacy was in the context of history-sheeting under state police regulations. In Malak Singh v. State of Punjab it was a surveillance register of specified categories of convicts. In Rajagopal, the judgement on privacy centred around the question on whether the autobiography of a convicted prisoner, allegedly co-authored by someone else, could be published. In Mr. X v. Hospital Z the issue of unauthorised disclosure of a patient's HIV status was in question. In Sharda v. Dharmpal the question of privacy rights arose in the context of a court order forcing a person to undergo a medical examination as part of divorce proceedings. In District Registrar and Collector, Hyderabad v Canara Bank, the question of privacy was in the context of the confidentiality of documents submitted to a public official. In the US Supreme Court case of Griswold v Connecticut that the Privacy judgement cites as well, - the right to privacy was held to exist in order to address a specific concern, namely the right of a married couple to use contraceptives.

In fact, globally, one would be hard pressed to find a judgement that is totally divorced from a factual dispute, that does not treat the right to privacy as essential to protecting other specific rights. Why does this matter? It matters because in treating privacy as an end, the judgement and the detractors of Aadhaar fail to deal with the underlying issues that infringe upon privacy and liberty. This in turn leads the Court to formulate tests that on closer inspection, clarify the use of state power with respect to privacy rights, without adequately explaining what those privacy interests are.

The Court notes that privacy is essential for the protection of individual autonomy and dignity. But it does not elaborate on what aspects of autonomy are worthy of being protected by privacy. Other than illustrating some examples of how the right to privacy could be applied to specific situations such as sexual orientation and data security, it provides no guidance on how this right to privacy is expected to interact with situations where individual privacy is subjected to larger societal interests. For example, the Court talks about the protection of individual identity in the context of data protection, but provides no explanation of what specific harms the right to privacy seeks to protect in the context of the misuse of personal data.

This is important as there are situations when individual autonomy and privacy may legitimately be circumscribed by societal interests. These include the disclosure of health records for buying health insurance or seeking health benefits, and the disclosure of income related information for claiming subsidies, etc. The judgement offers no consideration of the tension between individual privacy, liberty and public interest; this could only have been done in light of a specific dispute where the Court would have been forced to balance real and conflicting tensions.

Faced with this lack of factual circumstances, the Court in the Privacy judgement instead justifies possible constraints on privacy rights through a vague necessity doctrine. The Court states that the right to privacy can only be constrained by a parliamentary law made for a legitimate state interest, with constraints proportional to the object the law seeks to achieve.

It is, however, explicit in stating that the question of legitimate state interests in violating privacy rights can only be reviewed on the grounds of arbitrariness. In addition to laying down this test in the absence of specific circumstances, the judgement provides broad illustrations of what could be considered legitimate state purposes - national security, promotion of innovation, conferring social welfare benefits, etc. Unlike previous cases where the facts of the dispute ground the doctrinal points made by courts, the doctrinal points here can be construed widely or narrowly depending on the specific predilections of future courts.

The question of legitimate state interests is the question that should have occupied the attention of the Court - what kinds of infringements of privacy are permissible when specific actions of the State are claimed to be in furtherance of legitimate state interests? As per the Court, the only basis on which such a claim can be challenged is that of being arbitrary and disproportional. As long as there is no arbitrariness or disproportionality, infringements of privacy are permissible. However, neither arbitrariness or disproportionality are tests related directly to liberty and privacy in themselves.

For example, it is one thing to question whether the law related to telephone tapping is arbitrary or disproportional to the legitimate objectives of national security. It is another to question whether telephone tapping violates privacy or not. As per the test laid down by the Supreme Court, the law would not be unconstitutional if it were not arbitrary or disproportional. The test limits the discussion on the tension between privacy and national security only to the grounds of arbitrariness and proportionality. In doing so, the Court arguably missed an opportunity to create tests for legitimate state interests in interfering with privacy rights. Instead, the judgement of the Court illustrates a broad range of legitimate state interests where the state can interfere with privacy rights.

The same conclusion can be reached regarding the applicability of this judgement to other issues. If combating marital rape is a legitimate state interest, the Privacy judgement takes us no further in thinking about how to enter the private sanctuary of a bedroom in a way that respects the privacy of the married couple. Any law can be made as long as it is not arbitrary or disproportionate to a widely construed notion of a legitimate state objective. This is arguably an incomplete test, since it does not seek to balance the legitimate privacy interests of the married couple with the objectives of the state. The only balancing factors are that such laws not be arbitrary or disproportional. These tests are however, not related to liberty interests. The US Supreme Court in Griswold v. Connecticut found liberty interests that were violated by state laws that interfered with the use of contraceptives. Had that law been judged on the basis of arbitrariness and disproportionality, the outcome in the case may have been different.

State power has therefore been arguably expanded by limiting the grounds of challenge to arbitrariness and proportionality. It is therefore debatable whether we are better off than earlier, having created clear limits on the right to privacy, without any clear, substantive limits on state power. Only the state seems better off.

Personal Data Protection Bill: Leviathan On Steroids and the End Of Privacy

A logical consequence of treating privacy as an end in itself is the Personal Data Protection Bill proposed by the Justice Srikrishna Committee. Because the Bill treats data protection as an end in itself, it focuses only on the protection of data rather than the protection of interests that would be harmed by the unscrupulous use of data. The Bill casts a wide net, and in the process proposes the creation of arguably the most powerful and draconian state regulator India may ever see.

First, the lack of clarity of underlying values - the purview of the Bill extends to all data (in electronic form or otherwise). "Processing" of data is defined to include "collection" of data as well. So, the kirana store down the street that provides credit to customers for buying groceries on the basis of their previous repayments, a record of which it maintains in physical registers, would be subject to state supervision for its data management practices. The Bill mercifully provides some small exemptions for such "small entities" in Section 48 for manual processing, but they still have to comply with other data protection requirements.

Further, any discussion on specific privacy interests should have to deal with multiple conflicting interests - if individual privacy is important for the sake of, say, protecting individuals from online sexual harassment, a data protection law would have to deal with the tension between the right to access and participate on the internet freely and visibly, with the genuine potential for online abuse and harm. The provisions enabling data processing after consent would have to be tailored for this specific issue. Similarly, in its broad application of data protection requirements to the entire economy, the Bill fails to balance the tension between the conflicting interests of economic growth and data protection.

An example of the possible problems that may arise due to the lack of clarity on the ends of the Bill are the requirements regarding discrimination. The Bill states that "any discriminatory treatment" is a harm, and creates penalties and offences for causing such harm. But, devoid of any grounding of what forms of discrimination are permissible, this becomes an impossible standard to adhere to. Legitimate forms of discrimination such as preferring to lend money to people who pay back on time, over those who do not are essential to society. However, if a prospective borrower is refused a loan based on his or her credit history, this could constitute "harm" under the Bill.

Similarly, if an online matrimonial site shows its user only high net-worth suitors from Bihar based on an analysis of the user's past preferences, such discrimination would be beneficial for the user, but would be construed as discriminatory, unless there is clarity on what the provisions regarding discrimination seek to protect us from. But, since there is no real clarity on such ends, the supposedly safe route the Bill takes is to create a regulator with vague powers and ask it to protect data.

Parts of the Bill have been taken from the EU's General Data Protection Regulation (GDPR). The GDPR however sits on a bedrock of privacy jurisprudence (example) in the EU that goes back decades. We have borrowed the legislation without borrowing the privacy jurisprudence and the overall institutional ecosystem within which the GDPR operates. When the Bill is enacted, it will be interpreted and implemented without the underlying benefit of this jurisprudence. There will therefore be substantially less guidance for the proposed Data Protection Authority (DPA), and fewer checks on how it will interpret its powers.

Second, the claim that the DPA proposed by the Bill is a Leviathan on steroids is not a light one. One look at the definitions of "data" and "processing" confirms the wide scope of the law. In Section 60, the first function of the DPA is an ambiguous "monitoring and enforcing application of the provisions of this Act". In Indian state parlance this translates to: Use state coercion to solve every real or imagined problem provided you have the resources to do so. Even if the DPA were to construe such language strictly, it would have to intrude into almost all systems of data collection, storage and processing within the country to perform this function effectively. In the name of protecting data, it would necessarily have to supervise all data.

If for example, the DPA is to monitor compliance with the codes of conduct it is required to write for data processing, it will have to monitor the way in which data processors implement such codes with respect to their consumers. This will have to be done an economy-wide scale. One may argue that this can be done through less intrusive methods, but that is missing the point. The substantive power is there, and the powerful choice of how to regulate remains with the state. We shall remain at the mercy of liberal men, not liberal laws.

This broad jurisdiction is almost unprecedented for India. This is a huge departure from sector-specific jurisdictions carved out for other state agencies. The Reserve Bank of India can only collect data about banking and some other financial firms. SEBI can only do so with respect to the securities market. TRAI can only collect information about those in the telecommunications industry. The DPA is a regulator of data across sectors and jurisdictions. It will have the power to impose significant compliance costs and penalties on all individuals and enterprises that may collect data, even for purely incidental purposes.

Third, failure to abide by data protection requirements could land persons in jail. The offences under the Bill are proposed to be non-bailable. When combined with vaguely drafted provisions, this would have significant negative effects on society if the law is effectively applied. The Srikrishna committee report does not explain why such draconian punishments are required for the protection of data. Even serious crimes like murder are bailable. The report does not show any evidence to prove that misuse of data is a crime worse than murder.

The net consequence of the Bill, if enacted, would be this - the enactment of arguably the most powerful and intrusive regulatory agency in India, the enactment of draconian offences with great potential for misuse, and a punch in the face of private enterprise. Command and control is back, this time the driving force being the ideology of statism.

Conclusion: Privacy through the state, not from it

The ongoing discourse on privacy, Aadhaar and data protection leaves us with the inescapable role of the state as a mediating entity. In the Aadhaar discourse, the uses of identification will continue to be decided by the state without any clear agreement on what such uses should be. The right to privacy elucidated by the Supreme Court will have to evolve on a case-by-case basis as more state action relevant to privacy emerges. The Personal Data Protection Bill empowers the state to protect our data with broad and vaguely defined powers.

The fight for privacy as a means to protect individual liberty has, in the forms it takes today, led us to a point where state power on the whole, has been arguably strengthened vis-a-vis society. Contradictory to its stated aims, the current outcomes of the privacy debate are predicated on state coercion as a tool for protecting liberty.

It is a grave error to presume that the state will act benignly to uphold liberal values of privacy and autonomy. One reason is that these privacy values have not been sufficiently articulated - the discourse is almost entirely around means and not the specific interests the right to privacy seeks to protect. This can only be done by discussing privacy in specific contexts - if land records are to be made publicly accessible for increased efficiency in land markets, what is a reasonable expectation of privacy in such a context? Or, if the state wishes to build a sex offenders registry, how do privacy interests militate against such a system? As stated earlier, problems of identification systems are downstream of these issues. By not questioning the ends of identification systems like Aadhaar, its detractors are attempting to have their cake and eat it too. Even if Aadhaar is struck down, it is doubtful if privacy interests will be served in the long run.

Second, a liberal state cannot be built in isolation from the larger state apparatus. A state that habitually violates the rule of law and relies on draconian laws cannot be trusted implicitly to uphold liberal values just because the law empowering it is for a seemingly benign purpose. The Right to Education Act, a seemingly benign law, provides everyone the right to free and compulsory education, but does so by seriously constraining the right of private educational providers to actually provide education. This is routine for the Indian state - the pursuit of seemingly liberal objectives through coercive mechanisms. A state that routinely treats dissenters as traitors, evicts helpless landowners, and uses torture as an investigative tool, cannot reasonably be expected to act liberally in the interest of liberal values, especially if it is given draconian powers with vague objectives. It is reasonable to presume that the data protection law will suffer from the same illiberalism that we see in the Indian state.

A lot has been said of the misuse of data by private firms. A reasonably responsive state acts as a bulwark against such misuse. There is no bulwark against the state. If it is determined to take a certain course of action, whether it is the imposition of an emergency or the demonetisation of currency, no system of checks and balances is sufficient. Additionally, in the case of the data protection Bill, there has been no evidence shown by its proponents that the scale of the proposed data protection requirements is in any way commensurate to the dangers posed by private data companies.

Perhaps the greatest threat to individual liberty, autonomy and dignity comes from the fact that state action crowds out non-state action. State regulation operates to the exclusion of self-regulation. If, for example, the State determines the prices of essential commodities, private persons cannot negotiate and agree on the prices of such commodities. Though it has its problems, civic-associational regulation is often capable of much greater nuance and compromise than state regulation. State regulation in contrast, operates largely within binaries - permission versus prohibition, legality versus illegality, all enforced with coercive power behind it.

Those arguing in favour of privacy must avoid resorting to similar binaries. The present discourse rests on absolute moral claims about privacy, where political arguments should be made. Escalating political arguments to moral ones hastens the end of democracy. Since the moral claims of one side are considered odious and abhorrent by the other, no middle ground can be reached because collaboration with the opposition is treasonous in a moral fight. This spells greater danger for the survival of democracy; the only beneficiary is the increasingly-powerful State, and the stakes for capturing power become higher and higher. The impulse to turn to state-centred solutions has to be checked if individual privacy and dignity are to be preserved.

 

The author works with the National Institute of Public Finance and Policy, and is extremely grateful to Suyash Rai and Vasudha Reddy for discussions and inputs.