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Friday, October 06, 2017

Interesting readings

Between what's said and left unsaid by Somasekhar Sundaresan in Business Standard, October 4, 2017.

Insolvency and Bankruptcy Code: The only way out is through by Ajay Shah in Business Standard, October 1, 2017.

The deadly germ warfare island abandoned by the soviets by Zaria Gorvett in BBC, September 28, 2017.

The secret cost of pivoting to video by Heidi N. Moore in Columbia Journalism Review, September 26, 2017.

Fun over experience: India Inc likes its CEOs young by Ananya Bhattacharya in Quartz india, September 25, 2017.

The Courage to Be Yourself: E.E. Cummings on Art, Life, and Being Unafraid to Feel by Maria Popova in Brainpickings, September 25, 2017.

Why India Struggles to Predict the Weather Over Its Lands by Ankur Paliwal in The Wire, September 24, 2017.

The afterlife of Subramaniam Bhupathy by Arun Janardhan in Mint, September 23, 2017.

Backpacking through Lal Kot by Amrusha Chati on Livehistoryindia, September 22, 2017.

Content-Delivery Networks: Powering Network Infrastructure for the Future by Michael K. Smith on NIPFP YouTube Channel, September 7, 2017.

Wednesday, September 20, 2017

An analysis of Puttaswamy: the Supreme Court's privacy verdict

by Vrinda Bhandari, Amba Kak, Smriti Parsheera and Faiza Rahman.

Introduction

On 24th August 2017, a nine judge bench of the Supreme Court in Justice K.S. Puttaswamy vs Union of India passed a historic judgment affirming the constitutional right to privacy. It declared privacy to be an integral component of Part III of the Constitution of India, which lays down our fundamental rights, ranging from rights relating to equality (Articles 14 to 18); freedom of speech and expression (Article 19(1)(a)); freedom of movement (Article 19(1)(d)); protection of life and personal liberty (Article 21) and others. These fundamental rights cannot be given or taken away by law, and all laws and executive actions must abide by them.

The Supreme Court has, however, clarified that like most other fundamental rights, the right to privacy is not an "absolute right". Subject to the satisfaction of certain tests and benchmarks, a person's privacy interests can be overridden by competing state and individual interests. This post discusses the tests that have been laid down by the Supreme Court in the Puttaswamy case, against which privacy infringements will be evaluated going forward. Based on this analysis, the post argues that a majority of the judges in this decision have agreed that the European standard of proportionality shall be applied to test privacy infringements in the future. However, the rigour and technicality with which this doctrine is applied will depend on the nature of the competing interests in question and will evolve on a case by case basis. At the very least, any impugned action will continue to be tested on the "just, fair and reasonable" standard evolved under Article 21 of the Constitution. However, before we delve into the standards laid down by the Court, it is important to understand why the Supreme Court was called upon to decide if we have a fundamental right to privacy and how to read the decision it finally delivered.

Why was a nine judge bench constituted to decide upon the right to privacy?

The question of whether or not privacy is a fundamental right first arose in 2015 before a three judge bench of the Supreme Court considering the constitutional challenge to the Aadhaar framework. The Attorney General had then argued that although a number of Supreme Court decisions had recognised the right to privacy, Part III of the Constitution does not guarantee such a fundamental right since larger benches of the Court in M.P Sharma (8 judge bench) and Kharak Singh (6 judge bench), had refused to accept that the right to privacy was constitutionally protected. Consequently, this bench referred the matter to a five judge bench to ensure "institutional integrity and judicial discipline". Thereafter, the five judge bench referred the constitutional question to an even larger bench of nine judges to pronounce authoritatively on the status of the right to privacy.

How do we read the Puttaswamy judgment?

The judgment, spanning 547 pages, contains six opinions and a lot of interesting observations. At the outset, however, it is important to note that only the majority opinion in a judgment is binding on future cases. In this case, Chandrachud J. wrote the plurality opinion, on behalf of four judges (Kehar C.J., Agrawal J., Nazeer J., and himself), while the remaining five judges (Nariman J., Kaul J., Bobde J., Sapre J., and Chelameswar J.) wrote concurring opinions. Thus, while Justice Chandrachud's opinion is the "plurality" opinion, it does not constitute the majority, since it has not been signed by a total of five or more judges. Similarly, the concurring opinions too, are not binding, and do not constitute 'precedent' for future cases. Thus, the operative part of the judgment, i.e. the binding part, is only the order that has been signed by all nine judges, which holds:

  1. The eight judge bench decision in M P Sharma (1954), which held that the right to privacy is not protected by the Constitution stands over-ruled;
  2. The Court's subsequent decision in Kharak Singh (1962) also stands over-ruled to the extent that it holds that the right to privacy is not protected under the Constitution;
  3. The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution; and
  4. The body of case law that developed subsequent to Kharak Singh, recognising the right to privacy, enunciated the correct position of law.

It is a well settled legal principle that a case is only an authority for what it actually decides, not any observations made in the course of the judgment or any propositions that may logically follow from it. Hence, to determine what aspects of the judgment are binding, it is important to examine each opinion, and see the point of agreement amongst a majority of the nine judges. So, if any judge agrees with a view taken by Chandrachud J. on any proposition, that would result in a majority of five out of nine, and hence, be binding on smaller benches and other courts. For instance, since a majority of the judges agree that privacy is an inalienable, natural right, that forms part of the binding element of the case.

With this in mind, let us now examine each of the opinions in Puttaswamy to see what they hold, how they construe the right to privacy, and what standard of judicial review they apply.

The Court's (multiple) views on privacy

Writing the plurality opinion, Chandrachud J., holds that the right to privacy is not independent of the other freedoms guaranteed by Part III of the Constitution. It is an element of human dignity, and is an inalienable natural right. He focuses on the informational aspect of privacy, its connection with human dignity and autonomy, and rejects the argument that privacy is an elitist construct. During the course of his opinion, Chandrachud J. makes several observations about privacy in the digital economy, dangers of data mining, positive obligations on the State, and the need for a data protection law. He also raises an important point about the negative and positive elements of privacy. The former restricts the State from unfairly interfering in the privacy of individuals, while the latter obliges it to put in place a legislative framework to restrict others from doing so.

Chelameswar J. on the other hand, grounds the right to privacy, as comprising of three facets, namely repose (freedom from unwarranted stimuli), sanctuary (protection from intrusive observation) and intimate decision (autonomy to make personal life decisions). Nariman J. too, endorses Gary Bostwick's conceptual understanding of privacy as encompassing "repose, sanctuary and intimate decision". He gives further content to the right by classifying it into three categories: (1) that which involves invasion by the State into a person's physical body, (2) information privacy which captures unauthorised uses of personal information, and (3) privacy of choice, or "individual autonomy over fundamental personal choices".

For Bobde J., fundamental rights have two aspects - first, to restrict legislative powers and second, to provide the conditions for the development and dignity of individuals. Thus, similar to Chandrachud J., he recognises both the positive and negative aspects of enforcing fundamental rights, although he is clear that fundamental rights claims (as opposed to other laws) fall squarely on the State.

Kaul J., on the other hand, recognises the claims of privacy against the State and non-State actors. In respect of the State, he identifies concerns of surveillance and profiling, whereas in respect of non-State actors, he emphasizes on the impact of technology, in the form of pervasive data generation, collection, and use in a digital economy. Kaul J. also elaborates on the influence of big data, in particular, its impact on the actions of an individual and the resultant chilling effect it may have on free speech and expression. He thus observes the need to protect certain information from both the State as well as private actors. Finally, Sapre J. focuses his opinion on the importance of the Preamble to the Constitution, and the principles of liberty, dignity, and fraternity enshrined therein.

Given the Court's varying conceptions of privacy, it is easy to understand why the suggested standards for evaluating an infringement of the right also varied so widely. We turn to this in the next section.

Tests for infringement of privacy

After a bumpy start in the MP Singh and Kharak Singh cases referred to above, the Supreme Court's jurisprudence on privacy evolved to accept that privacy forms an integral part of ``personal liberty" under Article 21 of the Constitution, which cannot be denied except through a "procedure established by law". The Supreme Court has clarified this to mean that the procedure prescribed by law must necessarily be "just, fair and reasonable". How this, and other standards of judicial review, will apply in the case of intrusion by the State into the right privacy, was the subject matter of much discussion in the various opinions in Puttaswamy. This section discusses some of the key observations.

The judgment written by Chelameswar J. provides a good overview by highlighting that the requirement of reasonableness pervades throughout Part III, albeit operating slightly differently for different fundamental rights. Accordingly, he suggests a "menu" of tests that can be used in privacy cases, depending on the underlying rights that are affected. Thus, a violation of privacy in the context of an arbitrary State action would attract a "reasonableness" enquiry under Article 14; similarly, privacy invasions that implicate Article 19 freedoms would have to fall under the specified restrictions under this constitutional provision like public order, obscenity etc; and finally, intrusion into life or personal liberty under Article 21, which forms the "bedrock of the privacy guarantee", would have to be just, fair and reasonable. For instance, over-broad telephone-tapping regulations would implicate both a citizen's freedom of speech (Article 19(1)(a)) as well as her personal liberty (Article 21). Under the Courts analysis, such a law would have to be justifiable under one of the specific restrictions in Article 19(2), in addition to being "fair, just and reasonable" as required by Article 21, as was held in the PUCL case.

Notably, Justice Chelameswar also includes a fourth test for privacy claims which deserve the "highest standard of scrutiny" and can be justified only in case of a "compelling state interest". Borrowing the strict scrutiny standard, typically reserved for discrimination cases in the U.S., he notes that there exists a category of privacy claims which must satisfy not just the tests of being "just, fair and reasonable" under Article 21, but also a higher level of importance in terms of the government's interest in the privacy intrusion. While laying down this higher standard of scrutiny, Chelameswar J., however, stops short of illustrating what sort of actions could fall under this category, and what would be the trigger for the application of this test. These issues have been left open for future Courts to deal with.

Nariman J. adds to this analysis by giving several examples to emphasise that the restrictions on privacy will need to be tested based on the combination of rights being infringed. For example, if the violation is of Article 21 read with Article 14 (right to equality), then tests of arbitrariness and unreasonableness will apply; or under Article 21 read with Article 19(1) (a) (freedom of speech), then the impugned law/policy will have to relate to the reasonable restrictions specified in Article 19(2), as described in the wiretapping example above. Thus, Nariman J., rather than elucidating a test, only clarifies that the analysis will be case by case - based on existing jurisprudence under the relevant fundamental right that is invoked. In a similar vein, Bobde J. states that privacy infringements will have to answer the tests under those particular freedoms ``in addition to the one applicable to Article 21".

Borrowing vaguely from the restrictions on the right to privacy as specified under the European Convention on Human Rights (Article 8), Sapre J. brings in a slightly different perspective. He notes that the State can impose reasonable restrictions on the right to privacy "on the basis of social, moral and compelling public interest in accordance with law". If Sapre J. is indeed articulating a new test, it is unclear where its textual basis lies in the Indian Constitution, given that many fundamental rights, such as the freedom of speech and expression, do not recognise public interest as a valid restriction. Moreover, such an articulation lacks clarity on what standards will apply to judge the "social, moral, and compelling public interest" or how this would interact with Chelameshwar J's "compelling state interest" test. It may thus be better understood as a general articulation of the Article 19 standard for reasonable restrictions, which will apply differently based on the specific right that has been infringed.

Interestingly, two of the judgments (representing the views of five judges) provide more teeth in terms of how existing tests under Article 21 should be interpreted. Drawing from the concept of proportionality that is used to balance rights and competing interests under European law, Chandrachud J., notes that any invasion of life or personal liberty must meet the three requirements of (a) legality, i.e. there must be a law in existence; (b) legitimate aim, which he illustrates as including goals like national security, proper deployment of national resources, and protection of revenue; and (c) proportionality of the legitimate aims with the object sought to be achieved. Although Chandrachud J. has used the term "proportionality", he stops short of actually adopting the very technical European proportionality standard, with its focus on narrow tailoring and least restrictive means.

Kaul J.'s "proportionality" test differs slightly from Chandrachud J. It requires (a) legality, (b) necessity (narrow tailoring) and (c) proportionality, which is closer to the European standard. He adds to this a fourth element of (d) procedural safeguards against abuse of interference with rights, which echoes Article 21's central requirement of having a "procedure established by law".

How then do we read the majority opinion on the judicial review standard adopted in Puttaswamy? One way of reading the judgment could be through the proportionality standard espoused by Chandrachud J. and elaborated by Kaul J. According to this, the four elements of the judicial review standard are as follows, although it is relevant to note that the additional observations made by Kaul J. do not constitute part of the "majority view":

  1. Legality: The existence of a law.
  2. Legitimate goal: The law should seek to achieve a legitimate state aim (Chandrachud J.). The proposed action must be necessary in a democratic society for a legitimate aim (Kaul J.). Justice Kaul's opinion can be read to espouse the EU narrow tailoring test.
  3. Proportionality: There should be a rational nexus between the objects and the means adopted to achieve them (Chandrachud J.). Extent of interference must be proportionate to its need (Kaul J.).
  4. Procedural guarantees: To check against the abuse of State interference (Kaul J.)

There was unanimity amongst the nine judges that privacy is not an absolute right, although the basis for assessing violations is less clear. While the content and applicability of the aforesaid proportionality test will be determined by subsequent decisions, what is certain is that privacy claims will be tested against the existing standards applicable under the Constitution or developed by Courts for different categories of fundamental rights. At the very least, the impugned action should satisfy the test of "just, fair and reasonable" procedure under Article 21 of the Constitution.

Conclusion

The Court's broad interpretation of the right to privacy has paved the way for a wide range of claims. While the exact boundaries of the right will continue to develop on a case to case basis, it is clear that privacy claims will often have to be weighed against other competing interests. In the absence of a defined hierarchy among the various rights guaranteed under Part III of the Constitution, the decision in each case will vary based on facts at hand and the judicial interpretation. For instance, can the dignity of a married woman, which is central to her privacy and liberty, be infringed by a law on marital rape so as to shield the "private affairs" of the family? Does the efficiency of having a meta database of information on all citizens trump the autonomy of those who resist its adoption? Can an individual's "right to be forgotten" on the Internet override the open information needs of many others. In fact, just last week, a PIL was filed before the Delhi High Court that the restitution of conjugal rights provision in the Hindu Marriage Act and Special Marriage Act is violative of the right to privacy. The real test of privacy will lie in how subsequent Courts apply the Puttaswamy decision to determine these varied questions.

 

Vrinda Bhandari is a practicing advocate in Delhi. Amba Kak is a Mozilla Technology Policy Fellow. Smriti Parsheera and Faiza Rahman are researchers at the National Institute of Public Finance & Policy.

Monday, September 18, 2017

Interesting readings

Bonds markets are not different on Jayanth Varma's blog, 18 September 2017. How we achieve this in India.

Jaypee: consumer angle in IBC play by Aparna Ravi and Anjali Sharma in The Hindu, September 18, 2017.

Advantages of school-goers in Bombay: High school genetic diversity and later-life student outcomes by Justin Cook and Jason Fletcher in Vox, September 17, 2017.

A great churning by Ajay Shah in Business Standard, September 17, 2017.

Trump and Russia: what does Robert Mueller know? by Gillian Tett in Financial Times, September 15, 2017.

The Caribbean's pioneering form of disaster insurance in The Economist, September 14, 2017.

The great nutrient collapse by Helena Bottemiller Evich in Politico, September 13, 2017.

RBI faces a currency conundrum by Ishan Bakshi in Business Standard, September 11, 2017.

Interpretation of dreams: Growth is an artifact of how we compute GDP numbers by Abhijit Banerjee & Esther Duflo in The Economic Times, September 10, 2017.

Welcome support for the new bankruptcy law in Mint, September 7, 2017. Also see: The Economics chapter from Volume 1 of the BLRC report.

Behavioural insights for policy interventions: exploring the how and why? by Bhuvanesh Awasthi in NIPFP YouTube Channel, September 7, 2017.

The mystery of the lost Roman herb by Zaria Gorvett in BBC, September 7, 2017. While you can: Fifteen shades of green by Pushpesh Pant and Satya Prakash in Mint, 2 September 2017.

Pension as mandatory savings by Renuka Sane in Business Standard, September 5, 2017.

Right to Privacy Ruling Pokes Holes in Supreme Court's Order on National Anthem in Cinemas by Rohit Bhat in The Wire, September 4, 2017.

My life's mission to win over Kashmiris for India is irretrievably lost by Wajahat Habibullah in Scroll, September 4, 2017.

Cognitive and neural foundations of human decision making by Bhuvanesh Awasthi in NIPFP YouTube Channel, September 4, 2017.

This Tiny Country Feeds the World by Frank Viviano in National Geographic magazine, September 2017.

China Realizes It Needs Foreign Companies by Christopher Balding in Bloomberg, August 30, 2017.

Nehru's Speech at AMU Convocation, January 24, 1948.

Wednesday, September 06, 2017

Interesting readings

What shapes investment? by Ajay Shah in Business Standard, September 4, 2017.

Maximum pain by Ila Patnaik in The Indian Express, September 1, 2017.

A Rs 1 Crore Fund to Support Open Source Projects in India in Mozilla, August 30, 2017.

Extreme trust for govt almost tripled under Duterte admin: Survey by Jhoanna Ballaran in Inquirer, August 29, 2017.

Sarah Palin Defamation Suit Against The New York Times Is Dismissed by Sydney Ember in The New York Times, August 29, 2017.

Calls to weaken rupee are misguided by Vivek Dehejia in Mint, August 28, 2017.

The Two Americans by Sabrina Tavernise in The New York Times, August 26, 2017.

Privacy upheld as fundamental right: What term means for you, what is govt's view by Samarth Bansal in The Hindustan Times, August 24, 2017.

The republic of statistical scramble by Rajrishi Singhal in Mint, August 23, 2017.

The Role of the Council of Economic Advisers by Aaron Steelman in Richmond fed, August 23, 2017.

Monumental failures of RBI by Gajendra Haldea in Business Standard, August 22, 2017.

The Wonder Women of Botswana Safari by Hillary Richard in The New York Times, August 22, 2017. There is a great tradition of women guides and porters in Sikkim.

State of the police forces by Mandira Kala and Anviti Chaturvedi in NIPFP YouTube Channel, August 21, 2017.

Emerging infectious diseases in a city: dengue and chikungunya in Delhi by Olivier Telle in NIPFP YouTube Channel, August 22, 2017.

The great highway loot by Gajendra Haldea in The Indian Express, June 12, 2017.

Equal by Catastrophe by Victor Davis Hanson in Inference International Review of Science, Volume 3, Issue 2.

Saturday, September 02, 2017

Cost of compliance for clinical establishments

by Manya Nayar and Shubho Roy.

The Clinical Establishments (Registration and Regulation) Act, 2010 (Clinical Establishments Act) is facing resistance from the medical fraternity. The Indian Medical Association claims that the law will cause an increase in the cost of treatment and adversely affect small and medium size clinical establishments such as a clinic run by one or a few doctors. The Health Minister for Delhi promised that the law, as drafted by the Planning Commission, will not be implemented in Delhi. On 27th April, 2017, doctors observed `black day', to protest against the law.

Costs and benefits in a sound regulatory process

All regulation creates constraints for private persons. In general, the constrained cost minimisation of private persons will yield an inferior value (i.e. higher cost) when compared with the unconstrained cost minimisation. The question that society must ask is about the extent to which the regulation yields benefits that outweigh the costs.

In a sound regulatory process, this step is built into the regulatory process through administrative law. It is called Regulatory Impact Analysis (RIA) or Cost Benefit Analysis (CBA). The formal process of undertaking RIA/CBA is a healthy one for three reasons:

  1. The process of undertaking the CBA helps policy makers improve thinking about the problem that we seek to solve and the alternative mechanisms that could be adopted.
  2. The citizenry obtains greater transparency when the CBA is released. Officials get an opportunity to display expertise in the release of the documents. Transparency and expertise create legitimacy.
  3. The public, and all interested parties, are able to modify assumptions and rework the thought process of the regulator. This creates a more informed public debate.

As an example of doing cost-benefit analysis, consider the way the the British Government proposed a regulation requiring clinics to check the English language skills of doctors before he/she is appointed in a clinic. The cost-benefit analysis weighs the costs and benefits of various policy option including the option to do nothing. On the side of costs, the government estimated that 15% of the doctors will be required to take the test, which would cost GBP 132 per test. On the side of benefits, it was estimated that over a period of 10 years, English competence, would prevent:

1 death, 2 cases of severe harm and 15 cases of moderate harm...

The quality adjusted life year was valued at GBP 60,000. The litigation costs arising out of the injuries from poor English knowledge of doctors was estimated to be half of that. These would be savings to society: clinics and patients. The analysis concluded that the costs would be around GBP 0.77 million while total benefits would be GBP 2.01 million (on a net present value basis). As the estimated benefits outweigh the cost, the proposed regulation is justified.

Turning to the Indian context, while the protesters are arguing about the increased costs of treatment under the proposed law, estimates about the financial implications for providers are lacking. Like the Clinical Establishments Act, the Right to Education (RTE) Act also focuses on the provision of inputs and not on outcomes. Most of the requirements under the RTE act impose costs on schools without any demonstration on improved learning outcomes. Wadhwa (2010) shows that learning outcomes are not correlated with the school infrastructure, which forms majority of the measures required under the RTE Act. Wadhwa's research shows that the most significant factor for learning outcomes is teacher attendance. Sadly, this is not part of the RTE Act measures. On the other hand there is research to show that complying with the RTE Act, substantially increases the cost of school fees. Centre for Civil Society calculated the compliance cost of RTE in Delhi. They found that due to RTE norms, the average cost per child will go up to INR 2,223 per month from the current fee of INR 322 per month, indicating an increase in average fee by 590%. While some the RTE Act requirements like the need for a 800 sq.m. playgrounds have been relaxed to 200 sq m most of the other input based requirements remain. Muralidharan and Sundararaman (2009) carried out a randomised control trial in five districts of Andhra Pradesh with 500 schools over two years. Teachers were offered a bonus for gain in standardised scores. The authors conclude that teacher performance pay led to significant improvements in student test scores. The results also showed positive spillovers i.e. students further more performed better in subjects for which teachers were not given incentives. However, such measures are yet to be incorporated into the RTE law.

In this article, we estimate the cost of setting up a basic doctor's clinic which complies with the standards under the Clinical Establishments Act.

The standard

The Clinical Establishments Act prescribes standards for health care facilities. It covers pharmacies, dispensaries, clinics, diagnostic centres, and hospitals of various types and sizes. Standards have been made for different types of clinical establishments. The most basic type of clinical establishment under the Act is: Clinics (only consultation). This type covers a simple doctor's clinic. A doctor's clinic is usually the first, and most frequent, point of contact between doctors and patients. While these locations are limited to an interaction with a doctor, a few minor procedures like dressing, administering injections, etc. may be provided. No overnight stay or observation can be carried out in these clinics. The standards for this type of clinic constitute the smallest possible compliance cost under the law. We studied this standards document, Clinical Establishments Act Standard for Clinic/Polyclinic only Consultation, in order to estimate the cost of compliance.

Methodology

  1. We identified the requirements from the standards document.
  2. Made certain assumptions, like location of clinic, consumption of medicines, registration costs, etc.
  3. Obtained prices of the items required.
  4. Estimated the annual compliance cost.
  5. Drew up three scenarios based on assumptions about number of patients visiting each day.
  6. Estimated the compliance cost per patient.
Identifying requirements:

The standards document groups the requirements into seven categories:

  1. Infrastructure: Lays down the minimum floor area for the clinic.
  2. Furniture/fixtures: Mandates that the clinic have cupboards, tables, observation tables, etc.
  3. Human resource: Requires that the clinic have at least one support staff person.
  4. Equipment/instruments: Lists out the medical equipment that a clinic should have.
  5. Medicines: Requires the clinic to maintain inventor of 13 essential medicines.
  6. Legal/statutory requirements: Requires the doctor to be registered with the state medical council, the clinic be registered under the Clinical Establishments Act, and comply with environmental laws for disposing biomedical waste.
  7. Record Keeping: The clinic must keep records of all patients for 3 or 5 years.

Assumptions:

We made the following assumptions:

  • Location: The clinic is located in Saket, New Delhi.
  • Number of working days: The clinic is open for 26 days in a month.
  • Resuscitation equipment: The phrase resuscitation equipment in the standard is ambiguous. We assume that the requirements for hospitals would also apply to clinics.

  • Classifying medicines: We divided the list of medicines into emergency and non-emergency using Indian Public Health Standards: Guidelines for Community Health Centres.
  • Consumption rate of medicines: We assume that emergency medicines are consumed at the rate of 5 per month and non-emergency medicines, at the rate of 26 per month. These values were chosen through discussions with doctors.
  • Registration cost: The registration cost under the Clinical Establishments Act is assumed to be Rs.1000, which is generally the case.

Sources of price data: We found furniture and equipment prices from Amazon.in and Industrybuying.com. Rental charges were estimated using Magicbricks.com. The salary of the helper was estimated using Naukri.com. Prices of medicines were obtained from Medindia, MedPlus Mart and Indiamart.

Exclusions: Our estimates are conservative in that the following are not counted:

Number of users. The compliance costs will be distributed amongst the patients visiting the clinic. This requires assumptions about traffic at the clinic expressed in patients per day. We considered three scenarios: Optimistic (45/day), Realistic (30/day) and Pessimistic (15/day).

Findings

The calculations were made using a spreadsheet that is released to the public.

Table 1 reports the total cost for setting up and running the clinic for two years, and the costs per patient based on our scenarios. In Table 2, we broke the cost down into sub-components to see which part accounts for the largest share.

Table 1: Compliance cost and cost per patient
Expenditure/ScenariosYear OneYear Two
Compliance cost:
  Capital Expenditure95,11427,324
  Revenue Expenditure4,29,6404,29,640
Total Expenditure
(Sum of capital and revenue)
5,24,7544,56,964
Cost per patient:
  Pessimistic
  (15 patients/day)
112 98
  Realistic
  (30 patients/day)
56 49
  Optimistic
  (45 patients/day)
37 33
Values are in Rs.

This suggests that the standard may impose a cost of around Rs.50 per patient, under the `Realistic' case. These are significant values when compared with the typical charges at clinics in Delhi.

Table 2: Components of expenditure
HeadYear OneYear Two
Infrastructure 39.545.4
Furniture6.20.6
Human resource19.422.3
Equipment11.85.4
Drugs22.626.0
Legal requirements0.50.3
Values are in Percentage of total.

This shows that the cost structure is dominated by what the standard requires in the form of infrastructure.

Our work is incomplete

We have only estimated the costs of the standards. We have no idea of the benefits arising out of these standards. No studies or estimates about either benefits or costs were released by the government as part of the process of drafting the standards. We know that infrastructure costs are important, but we do not know if the size of the waiting room affects the quality of medical care. This requires much more research about the benefits each requirement, like a 35 sq.ft. waiting room, bring to the table.

Conclusion

Regulations impose costs. Costs are passed on to users. When the benefits to users are more than the costs, the regulations may be beneficial. It is not clear that the standards for basic clinics satisfy this criterion. There are no estimates about the benefits that flow from the standards. It is not clear that mandatory staff or minimum waiting area help induce a positive outcome for patients.

Regulations under the Clinical Establishments Act will have consequences on the price of health care in India. In India, an increase in prices of a few per cent can impact upon millions of users. People excluded from trained medical care may use quacks as a substitute. Such substitutions may have negative effects on health outcomes. More work needs to be done before imposing requirements on regulated entities. The government should carry out research and analysis to be satisfied that each word of each law/standard is justified and the benefits outweigh the costs.

References

Centre for Civil Society, Effectiveness of School Input Norms under the Right to Education Act, 2009, 2015, Centre for Civil Society.

Misra, Kartik and Bapna, Akanksha and Shah, Parth J.,The cost to comply with the Right to Education Act, 2012 (on file with authors).

Muralidharan, Karthik and Venkatesh Sundararaman, Teacher Performance Pay: Experimental Evidence From India.(2009) NBER Working Paper Series 15323.

Narang, Prashant, Right to Education as Another License Raj: Punjab as a case study, 2014, Centre for Civil Society.

Wadhwa, Wilima, RTE norms and learning outcomes, 2010, ASER.

Wednesday, August 30, 2017

Watching India's insolvency reforms: a new dataset of insolvency cases

by Sreyan Chatterjee, Gausia Shaikh and Bhargavi Zaveri.

The legal framework for insolvency resolution in India underwent a structural change when the Insolvency and Bankruptcy Code, 2016 (IBC) was passed in May 2016. Once the provisions relating to corporate insolvency were notified (November 2016), the first cases of insolvency started being admitted in the National Company Law Tribunal (NCLT), the quasi-judicial tribunal vested with adjudication powers under the IBC. The final orders on these cases became the first public records of India's new insolvency framework. In a recent working paper titled Watching India's insolvency reforms: a new dataset of insolvency cases, we introduce a new dataset of all final orders passed by the NCLT and the appellate forum, the National Company Law Appellate Tribunal (NCLAT) under the IBC. In the paper, we also illustratively apply the data to answer questions about the economic impact of the IBC and the functioning of the judiciary under it. This blogpost presents some summary statistics on the IBC and our preliminary findings relating to the working of the IBC.

We use information collected from the final orders published by the NCLT in the first six months of operationalisation of the IBC, that is, from 1st December, 2016 until 15th May, 2017 (hereafter, "sample period"). There are 23 fields of information for each case in the data-set. This includes parameters such as, who are the initial users of the insolvency process under the IBC, what kind of evidence are they using to support their claims before the NCLT, the average time taken by the NCLT to dispose off cases, the outcome of the proceedings, reason for dimissal of a case and the variation in admission and dismissal across the nine benches of the NCLT.

Using data to understand the economic impact of the IBC

We apply the data to answer three questions relating to the economic impact of the law:

Does the law improve the balance between rights of the creditors and the firm debtor during insolvency?

The Indian legal regime preceding the IBC conferred weak rights on creditors, especially unsecured creditors. It created scope for the judiciary to intervene in the commerical matters of debt re-structuring. The law itself and the courts and tribunals enforcing it, also exhibited a rehabilitation and pro-debtor bias (Ravi 2015). While the sample period represents the earliest days of operationalisation of the IBC and the current data-set is small to conclusively answer this question, this early data indicates that there has been a shift in the enforcement of creditors' rights under the IBC. Table 1 shows who used the IBC during the first six months of its operationalisation.

Table 1: Who used the IBC?

No. of petitions filed by operational creditors 62
No. of petitions filed by financial creditors 21
No. of
petitions filed by creditors
83
No. of petitions filed by debtors 26
No. of unknown applicants 1

Total 110

Of the 110 cases that were disposed off during the sample period, 75 percent of the cases were triggered by creditors. Of these, 75 percent were filed by unsecured operational creditors. This indicates that operational creditors, who hitherto had weak enforcement rights, have taken recourse to the IBC to enforce their claims. There may be multiple reasons for the relatively low number of financial creditors taking recourse to the IBC during the first six months. Anecdotal evidence suggests that firm debtors default to financial creditors the last. Financial creditors may largely be secured creditors who may choose to enforce their claim by realising their security. There was lack of regulatory certainty on provisioning norms for banks and the apprehension of scrutiny by the anti-corruption investigative agencies among bank management. However, in the absence of data on default or the enforcement of security by financial creditors in India, the reason for the divergence in creditor behavior in triggering the IBC is unclear.

Another feature of interest is the behaviour of the debtor. There is a commonly voiced apprehension that the debtor will avoid resorting to insolvency because the IBC moves away from the debtor-in-possession model to a framework where the debtor's board is suspended and the affairs of the debtor are run by an independent insolvency professional. However, contrary to this apprehension, around 24 percent of the petitions in this early six month period have been filed by debtors.

Of the 110 cases that were filed, 50% of them have been admitted by the NCLT and are now undergoing a mutually negotiated debt restructuring process. This shows that unlike the previous regime where the judicial bodies exhibited a pro-debtor bias, there is no explicit admission or dismissal bias for insolvency cases under the IBC.

Within the caveat that these are early days and we still have to observe how these cases get resolved, the observed data suggests that creditors are able to use the new insolvency and bankruptcy regime with increasing confidence compared to the previous regime.

Does the law empower various types of creditors when the firm defaults?

Table 2 shows the kind of operational creditors who took resort to the IBC during the sample period. While majority of the operational creditors are suppliers to the debtor, we find that even holders of decrees are taking recourse to the IBC.

Table 2: Operational creditors who used the IBC

Employees 5
Vendors 43
Others 6
Not
known
8

Total 62

Table 3 shows the outcomes of the insolvency cases filed by different kinds of creditors during the sample period. While 43 percent of the cases filed by the financial creditors were dismissed, the percentage of dismissal for operational creditors is slightly higher at 58 percent.

Table 3: Admission and dismissal across different kinds of creditors

No. of petitions
filed
AdmittedDismissed

Operational
creditors
622636
Financial
creditors
21129
Debtors26233
Unknown101

Total1106149

A reading of Tables 2 and 3 would indicate that even during the earliest days of its operationalisation, a wide variety of creditors have shown the ability to trigger insolvency proceedings under the IBC. This is in contrast to the previous regime where only a certain subset of creditors were able to trigger insolvency proceedings against firm debtors, and other creditors had to file cases in civil courts.

Does the law empower only large sized debt holders?

Table 4 shows the size of debt claims that have been used to trigger the IBC during the sample period. The table also presents the distribution across the different quartiles, by showing threshold values at three different cut-off points: for the 25th percentile point, the 50th percentile and the 75th percentile point. The 25th percentile point is the value below which 25 percent of the cases will fall, the 50th percentile point is the point below which 50 percent of the cases will fall and so on. Further, this has been done by the different types of stakeholders: financial creditors, operational creditors and the debtor.

Table 4: Debt size litigated under IBC (in Rs.)

Size of debt reported Corporate debtors Operational creditors Financial creditors

Minimum 9,211,106 109,516 3,069,000
25th percentile 98,160,525 1,276,884 15,085,632
50th percentile 435,747,000 3,373,191 172,037,926
75th percentile 128,97,93,692 28,027,382 772,448,220
Maximum 25,800,700,000 1,319,000,000 8,565,257,199

No. of observations 24 54 16

The table shows that the smallest claim to trigger the IBC was filed by an operational creditor with a claim of debt default of Rs.109,516 (or Rs.1.09 lakh). In comparison, the smallest debt against which a financial creditor triggered the IBC was Rs.3,069,000 (or Rs.30.69 lakhs) which was 30 times larger. The maximum debt default claimed by an operational creditor was Rs.1,319 million (or Rs.131.9 crores) while the largest default to a financial creditor was Rs.8,565
million (or Rs.856.5 crores) which was only 8 times larger. This shows that operational creditors, who had considerably weaker rights under the previous regime, had considerably large debt repayments due from firm debtors. Thus, while the IBC is being triggered by creditors on a wide range of size of defaults, most of the cases observed so far (more than 75 percent of the cases) tend to be triggered using debt defaults that are approximately 10 to 100 times larger than the threshold of Rs.100,000 set in the law.

Using data to understand the functioning of the NCLT under the IBC

We find that the published data is ambiguous about behavioural or structural changes in the judiciary to fit within the role defined for it, in the IBC. The information display systems of the NCLT do not give an overview of the entire cycle of a case, and bits and pieces of information are available in the final orders. For instance, while each order specifies the date on which it was passed, several orders do not capture other information critical for assessing the time taken for the disposal of insolvency petitions, such as: the date on which the insolvency petition was filed, the date on which it first came up for hearing. 16 of the 110 orders studied did not reflect the amount of debt or default that was the subject matter of the case. Admittedly, there are more laborous methods to discern the entire life cycle and facts of a given case, such as examining the case records maintained by the registry at the each bench of the NCLT. However, for reasons explained in our paper, we find that these methods will also not help in ascertaining the performance of the NCLT as a whole. This constrains the ability of both the court administration as well as independent researchers to readily assess the performance of the NCLT.

With the limited data that is available from the published orders, we have attempted to answer two important questions about the functioning of the NCLT under the IBC.

Does the NCLT function within the timelines set in the law?

The IBC requires the NCLT to dispose off an insolvency petition within 14 calendar days from the date on which it is filed before it. Our dataset captures the following dates in the life-cycle of an insolvency petition: date on which the case is filed (T0), date on which it first comes up for hearing (T1) and the date on which it is disposed off (T2). The amount of time that elapses between T0 and T1 could be attributed to the internal processes of the NCLT in scheduling hearings for a case. Our assessment shows that the NCLT exceeds the timeline of 14 days prescribed by statute. Table 5 summarises our findings.

Table 5: Average time taken for disposal of insolvency petitions by the NCLT

Stage Number of cases
for which data is available
Average time (calendar
days)

T0 to
T1
12 18
T1 to T2 52 16
T0 to T224 24

Table 5 shows that the average time taken from the date of filing the insolvency petition to the date on which it first comes up for hearing, is 18 days. The average time between the date on which it first came up for hearing and the date on which it is finally disposed off, is 16 days. Finally, the average time taken for disposal is 24 days (T0 to T2). This is significantly more than the timeline of 14 days prescribed under the IBC. Currently, the data does not allow us to analyse the reasons for this delay.

Is the role played by the NCLT as visualised within the IBC?

While the law enumerates specific grounds for dismissing an insolvency case and is largely biased towards allowing an insolvency to be triggered if the debtor has committed a default in repayment of an undisputed debt, the NCLT has dismissed petitions on extraneous considerations as well. Table 6 shows the various grounds on which insolvency petitions were dismissed during the sample period.

Table 6: Reasons for dismissal of insolvency petitions

Ground of dismissal No. of insolvency petitions dismissed

Existing dispute8
Applicant was not a creditor as defined in
the IBC
7
Settled out of court5
Debt recovery barred by limitation3
Incomplete application 2
Operational creditor failed to issue statutory demand
notice prior to filing the case
2
Others 22

Total49

A review of a sample of dismissals classified as "Others" in Table 6 shows that the NCLT considers factors not explicitly spelt out in the IBC for dismissing the insolvency petition. For instance, in an insolvency petition filed before the Mumbai bench, the Tribunal recognized that all the ingredients required under the IBC were present to admit the petition. However, the NCLT extended the scope of its inquiry to the balance sheet of the debtor and held that since the debtor had sufficient assets on its balance sheet, it would be unfair and inconvenient for the debtor if the petition were admitted. The NCLT ignored the creditor's argument that the provisions of the IBC do not allow the Tribunal to embark upon a balance sheet analysis.

This indicates that the NCLT seems to be viewing the admission of an insolvency case as an excessively harsh outcome for a debtor. If this trend continues, it may degenerate into a debtor-favouring bias going ahead. Thus, the data shows that the working of the NCLT is not always in line with the letter and spirit of the IBC.

Information gaps in the NCLT orders

We find that there is no standardised format of recording case information. Consequently, several final orders lack in basic information such as the kind of creditor who filed the petition, the claim amount and the date on which the insolvency case was instituted. Our finding on information gaps in the orders of the NCLT is in line with the findings of other research done with respect to the orders passed by the Debt Recovery Tribunals in India (Regy and Roy 2017).

There are three adverse consequences of such information gaps in the NCLT orders. First, the absence of basic information about the case hinders the ability of the NCLT to monitor the efficiency of its own benches. It also constrains researchers from assessing the quality of the procedural requirements and outcomes of the law. Second, this will hinder the ability to identify systemic lapses in the functioning of tribunals and in designing appropriate interventions. Third, inadequate or incomplete data has implications for the overall accountability and transparency of these tribunals to the public, and in the long run, will erode the credibility of the NCLT as an institution.

Finally, the strength of the legal framework ultimately rests on the efficiency of the adjudicator of the law. This is especially so for a procedural law like the bankruptcy law. Structural lapses in the NCLT are likely to cripple the working of the legal framework, reduce the efficiency of resolution and leave the bankruptcy reforms process undone. Fortunately, these are early days yet, and there is scope for
course correction.

Conclusion and way forward

The empirical analysis in our paper, though preliminary, indicates that the IBC is likely to have a structural change in the behaviour of economic agents, as well as in the areas where the NCLT functions as the adjudicator under the IBC. Our exercise of building a dynamic dataset that is geared towards impact assessment, also brings out the gaps in data that courts publish. Our findings on the data gaps, elaborated in greater detail in the paper, will provide a framework for re-thinking the data management and publication systems of tribunals in India.

The ultimate goal of this dataset is to provide a foundation to answer questions on the impact of the IBC and the overall functioning of the Indian bankruptcy regime. The dataset is dynamic and will be updated on a regular basis. As the insolvency cases increase, the dataset will too increase in scope and size. As more data gets published, relevant fields, such as recovery rates and expenses associated with the recovery process, can potentially be integrated into the dataset. This will fuel deeper research on insolvency and credit markets in India. Such data-backed research will support policy interventions in this space in the years to come.

References

The Indian insolvency regime in practice -- an analysis of insolvency and debt recovery proceedings, Aparna Ravi. Economic & Political Weekly, Volume 1, No. 51, December 2015.

Understanding Judicial Delays in Debt Tribunals, Shubho Roy and Prasanth Regy. NIPFP Working Paper 195, May 2017.

Acknowledgement

We thank Susan Thomas for useful discussions and insights on empirics.

 

The authors are researchers at the Indira Gandhi Institute of Development Research.

Wednesday, August 23, 2017

Flat buyers under IBC: Creditors or consumers?

by Pratik Datta.

The Indian bankruptcy regime is developing very fast. There is a risk that the law may soon diverge from the original policy intent. One such example is the recent regulation by IBBI creating a third category of creditors - other than financial or operational creditor. Commentators have suggested that flat buyers would fall under this third category. This comes in the backdrop of recent decisions of NCLT and NCLAT that have left flat buyers jittery about their future once the real estate company enters corporate insolvency resolution process (CIRP).

There are two separate issues here. First, the Bankruptcy Law Reforms Committee (BLRC) in its report had only envisaged two categories of creditors (financial and operational) for the purposes of CIRP. But the ambiguous language of Insolvency and Bankruptcy Code (IBC)
prompted IBBI to create a third category of creditors. This third creditor can neither trigger the CIRP, nor be on the Committee of Creditors (CoC). Second, BLRC had categorically stated that not all assets present within the insolvent company shall form part of the liquidation. Whether the corresponding provisions of IBC will protect flat buyers of insolvent real estate companies remains to be seen.

The third creditor

There are multiple ways in which creditors could be classified: financial versus operational, secured versus unsecured etc. The BLRC had to decide how to classify creditors in different contexts. One such context was CIRP - who will trigger it? Who will be on the CoC? Faced with these questions, the BLRC report noted that both the debtor and the creditors should have the power to trigger CIRP. However, a creditor could trigger the CIRP only on clear evidence of default. Since the process of establishing default would have to be different for financial and operational creditors, the BLRC had to classify creditors into these two categories. In this policy scheme, no third category of creditors was envisaged.

The two way classification was also useful in determining the composition of the CoC. The BLRC report notes:

The Committee deliberated on who should be on the creditors committee, given the power of the creditors committee to ultimately keep the entity as a going concern or liquidate it. The Committee reasoned that members of the creditors committee have to be creditors both with the capability to assess viability, as well as to be willing to modify terms of existing liabilities in negotiations. Typically, operational creditors are neither able to decide on matters regarding the insolvency of the entity, nor willing to take the risk of postponing payments for better future prospects for the entity. The Committee concluded that, for the process to be rapid and efficient, the Code will provide that the creditors committee should be restricted to only the financial creditors.

In spite of the clear policy rationale for having only two types of creditors (financial and operational) for the CIRP process, the ambiguous language of IBC has now caused confusion.

Ambiguity in IBC

First, most Indian statutes have only one section for definitions. In contrast, IBC has three sections with the title "Definitions" - section 3, 5 and 79. While section 3 is for the entire Code, section 5 is only for Part II (corporate insolvency) and section 79 is only for Part III (personal insolvency). The word "creditor" is defined in section 3(10) to include "any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decreeholder". This inclusive definition suggests that under IBC there could be creditors other than "financial creditor" and "operational creditor". This doubt is further entrenched because various sections within Part II (corporate insolvency) use "creditor" as well as "financial creditor" and "operational creditor". This drafting gives the impression that the legislature has used the word "creditor" to include more than just financial and operational creditor in CIRP.

Second, Indian statutes usually use a negative definition while making binary classifications. For instance, under FEMA there are only two kinds of transactions: "capital account transaction" and "current account transactions". To achieve this, the law provides a principle-based definition of "capital account transaction". Then it defines "current account transactions" simply as "a transaction other than a capital account transaction". Similarly, IBC could have also defined "financial debt" and then defined "operational debt" as any debt other than "financial debt". That would have ensured that there is no third category of debts (and creditors). Unfortunately, IBC provides principle-based definition for both "financial debt" and "operational debt", thus creating scope for a third category of debts.

These legislative ambiguities seem to have prompted IBBI to create a third category of creditors, contrary to the orginal policy intent.

Consumers, not creditors

Some commentators have opined that certain flat buyers would fall under this third category of creditors. Simultaneously, IBBI has categorically denied media reports suggesting that flat buyers will now be part of CoC. On the other hand, NCLT has ruled that flat buyers are not "operational creditors" either. In view of these differing view points, it would be useful to first understand the basics of a simple flat purchase transaction.

Most buyers pay the real estate developer in advance for delivery of the property at a future date. The problem begins when the developer defaults in delivering the property on time. Buyers resort to various legal actions either to get possession of the property or to get their money back. Clearly, in these cases the buyers are not creditors of the real estate company. They are merely consumers of its services. Just like a pre-paid mobile customer is a consumer of the telco.

In one exceptional case - Nikhil Mehta v. AMR Infrastructure - NCLAT held the concerned flat buyers to be "financial creditors". But this was because of an exceptional clause in their agreement. The developer had contractually agreed to pay a monthly amount to the buyers till the property was delivered to them. In view of this unique clause, NCLAT held that these flat buyers were "financial creditors" of the developer company. This is not a principle of general applicability. Therefore, it can be concluded that all flat buyers are consumers but not necessarily financial creditors.

Consumers under IBC

If flat buyers are consumers of the real estate company, what happens to them if a bank triggers CIRP against the real estate company? This is an important question with practical implications. Although the BLRC did not discuss this issue specifically, it had explicitly recommended that "not all assets that are present within the entity, from the start of the IRP, can be considered for liquidation." Accordingly, section 36 of the IBC excludes "assets held in trust for any third party" from being included in the liquidation estate.

It could be legitimately argued that the funds and properties held by the insolvent real estate company in trust for the third party consumers (flat buyers) should get the protection under section 36. In that case, these funds and properties cannot be taken away by the creditors (like banks) of the real estate company. However, section 18 of the IBC suggests that the interim resolution professional cannot take control and custody of these assets. In view of this contradiction, it needs to be seen how the jurisprudence on "assets held in trust" develops to provide effective remedy to aggrieved flat buyers under IBC.

Conclusion

When IBC was enacted, policymakers realised that unforeseen challenges are likely to crop up during its implementation. That is why section 242 of IBC empowers the Central Government to remove difficulties faced during implementation. However, if necessary, the government can always streamline the law by suitably amending it. In view of the above complications arising out of the insolvencies in the real estate sector, policymakers need to consider if IBC is currently equipped to handle the challenges ahead or would an amendment be necessary to equip it suitably.

 

Pratik Datta is a researcher.