Comment

Public interest and its instrumentalities

ONCE a mere communication device, the telephone is now an instrument of empowerment. No longer limited to voice, the evolution from analog to digital technology has facilitated the conversion of voice, data and video to the digital form. Increasingly, these are now being rendered through single networks, bringing about a convergence in networks, platforms, services and devices, leading to enhanced affordability, increased access and delivering multiple services, a key enabler of equitable and inclusive growth.

Market liberalization and growth since the 1990s has made India among the world’s most competitive and fastest growing telecom markets. The Government of India places a special emphasis on providing reliable and affordable broadband access to rural and remote areas by appropriate combination of optical fibre, wireless, VSAT and other technologies. An optical fibre network will initially be laid up to the village panchayat level by securing funding from the Universal Service Obligation Fund (USOF) and then gradually extended to every village. The possibilities opened up by public-private partnership to share the common resources and earn profits while achieving the goals of the telecom policy is what occasioned the licensing policy and revenue sharing agreements that the private companies entered into with government.

The Delhi High Court judgement of 6 January 2014 in the case of Unified Cellular Service Providers of India versus Union of India removed obstacles posed by a litigious set of private companies to an audit of the accounts of revenues maintained by the telecom companies for itself and the Union government as per provisions of the licence agreements. The court’s judgement is balanced and in tune with a number of judgements by the Supreme Court on the more general subject of public interest and its instrumentalities. It has (i) dismissed the petitions of the companies which objected to audit by the CAG of revenues payable by the companies to the government; (ii) asserted the legal position that the CAG can and should audit revenues collected by the telecom companies; and (iii) at the same time, reminded the CAG that the audit should pertain only to the accounts of the receipts and not to the entire operations and accounts of the companies.

Instead of helping people appreciate the arguments that weigh with Indian courts in deciding the issues of private and public interest, the media has sensationalized the development as a ‘milestone judgement’, thereby insinuating that the state is stepping on private toes. There is neither any encroachment on private interests nor any departure from well established principles of jurisprudence in the Delhi High Court’s judgement. And unlike misleading reports such as ‘CAG discom audit all bark, no bite: Delhi High Court’ (DNA, 7 January 2013), it is more likely that the CAG’s right to audit discoms of Delhi, even though they have entered into no agreement to take from or pay money to the Consolidated Fund of India, will be upheld by the courts, in case the matter is contested.

Our Constitution defines the ‘the State’ in Article 12 as one that includes the Government and Parliament of India and the Government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the Government of India. It has been clarified by several SC rulings that while stressing the necessity of a wide meaning to be placed on the expression ‘other authorities’, it must be realized that it should not be stretched so far as to bring in every autonomous body which has some nexus with the government with the sweep of an expression. A wide enlargement of the meaning must be tempered by a wise limitation. The essential tests to determine whether a particular institution is within the meaning of ‘other authority’ as used in Article 12 of the Constitution are: substantial financial aid, control by the government, state conferred monopoly status, performance of public functions and entrustment of governmental activities. As per judicial pronouncements, it is not necessary that all these elements should be present in a particular case. One or a combination of more than one of them may be sufficient. Even a private body which is an agency of the State may be a ‘State’ (see Notes on Article 12, sub-section ‘Other Authorities’, in P.M. Bakshi, The Constitution of India, Universal Law Publishing Company, pp. 16-17).

Justice Bhagwati clarified, specifically in his judgement in the leading case of Ajay Hasia v. Khalid Mujib (AIR 1981 SC 487) that: ‘It is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the government and not as to how it is created. The enquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a government company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies Registration Act, 1860 or any other similar statute. Whatever be its genetic origin, it would be an "authority" within the meaning of Article 12 if it is an instrumentality or agency of the government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors.’

This logic applies equally, but in different ways, to the privately owned telecom companies and the discoms. In the case of the telecom providers, the case was rendered very simple to decide because, in addition to the argument that the companies are ‘other authorities’ or intrumentalities of the state by the test of their serving a public function, the court could rely simply on the conditions stipulated at Clause 22 of the revenue sharing license agreements with government that the companies had entered into.

The judgement has been summarized by the court in simple language at paras 50-52. The Constitution (Article 149) mandates the Comptroller and Auditor General to perform such duties and exercise such powers in relation to the accounts of the Union and of the states and of any other authority or body as may be prescribed by or under any law made by Parliament. While enacting the Comptroller and Auditor General (Duties, Powers and Conditions of Service) Act, 1971, vide Section 10, the Parliament has prescribed the manner in which power contemplated by Article 149 shall be exercised by the Comptroller and Auditor General in relation to compiling and keeping accounts and vide Section 13 has prescribed the manner in which the expenditure shall be audited and vide Section 16 has prescribed the manner in which the receipts have to be audited.

The court held that in a very real sense the licensees are the accountant of the central government with respect to the complete, accurate and honest maintenance of the books as to any transaction(s) involving revenue. They held that under the terms of the licence agreement, the licensee has undertaken the accounting responsibility for the central government as well as itself. Thus, the accounts of the licensees, in relation to the revenue receipts can be said to be the accounts of the central government and thus subject to a revenue audit as per Section 16 of the Comptroller and Auditor General (Duties, Powers and Conditions of Service) Act, 1971.

The court stated: ‘The Rule and the Section fits perfectly into the constitutional scheme of every rupee flowing into the Consolidated Fund of India, by way of revenue, to be audited by the Comptroller and Auditor General of India. The Rule, the Section and the constitutional provisions as interpreted by us perfectly fit the critical features of the new emerging regulatory state which has to reconstruct institutions on the ruins of the club-like government requiring displacing the key feature of the club with standardization and formality and the provision of systematic information accessible both to insiders and outsiders and strengthening the control mechanism and public reporting.’

The case of the discoms in Delhi is different only in that they have not entered into any revenue sharing agreements. They neither take any grants or loans from the Consolidated Fund of India(CFI) nor are they obliged to pay any revenues into the CFI. However, they are instrumentalities of state because they have been entrusted the public function of distributing electricity to consumers as ‘distribution licensee’ under the Electricity Act 2003, which means a licensee authorized to operate and maintain a distribution system for supplying electricity to the consumers in his area of supply.

As stated in its preamble, the Electricity Act of 2003 (amended upto 2007) is an act to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition therein, protecting interest of consumers and supply of electricity to all areas, rationalization of electricity tariff, ensuring transparent policies regarding subsidies, promotion of efficient and environmentally benign policies, constitution of Central Electricity Authority, Regulatory Commissions and establishment of Appellate Tribunal and for matters connected therewith or incidental thereto. The Delhi Vidyut Board unbundled generation, transmission and distribution of electricity and a two stage competitive bidding process of Request for Qualification (RFQ) and Request for Proposal (RFP) was set into motion for privatization of the distribution companies. The bidders were selected on the basis of reduction of total Aggregate Technical and Commercial of losses (AT&C), a unique feature of the power sector reforms in Delhi. The bidders were required to bid on the basis of efficiency improvement like reduction of AT&C losses that they achieve year wise over a period of five years. The distribution licensees have probably failed to meet these conditions and judging by the speech of the LG in his address to the Delhi Assembly on 7 January 2014, it appears that Arvind Kejriwal is not tilting at windmills. Section 20 of CAG’s (DPC) Act 1971 clearly allows the CAG, if so requested by the state government, to audit the entire operations of the discoms.

There can be no doubt that private companies help to quickly harness innovations and are more enterprising in general. And this has always been respected in principle by the courts in India. What is needed now is for the private sector in India to appreciate the national aspirations expressed by the Constitution of India at Article 39(b). It is a directive to the state that its policies pertaining to material resources of the community are so directed that these resources are distributed as best as possible to subserve the common good.

Amitabh Mukhopadhyay

 

Hacking Indian journalism

AN average Indian journalist is like a teat pipette which spills more than it can suck to wreak havoc on the contemporary narrative. That is how Hunter S. Thompson would have opined, if the S ever stood for Singh, which, I believe, could very well be the case. There are times when my dehorned scalp itches like anything to unleash the mendacity that I have acquired lately. I am tempted to conduct elaborate cyber-infiltration operations on these batty little boobs, exposing their gooey underbellies and scaring them so much that they run out giving a synchronized Wilhelm scream. But, of course, things like these have never fallen under my moral purview and, moreover, they require some institutional backing. I do, nonetheless, wonder if Indian journalists need to be terrorized like that, especially when they are so good at bitch-slapping each other.

The rant would stop just about here as the priority is to delve into the ever-present metanarrative and the esotericism of conversations in a brave, new and inordinately connected world. Right after my friend Hartosh Singh Bal was sacked and Tehelka fell prey to its own demagoguery – triggering a sadistic, feudal-quality fratricide within the cabal – I waited for that one opinion piece highlighting the plight of the listless reader. I contemplated whether the momentous rupture would make the journalistic community hold itself accountable to its readership more than anyone else, conceding to the massive breach of trust that had taken place, to preserve the sanctity of the written word and the impact it can carry. That was not to be.

There has been a lot of talk about media biases lately. I see it differently; I see it mainly as a clash between expression and reportage. As an engineer, I will bet my money on the fact that if one undertakes a simple lexical analysis of all the English-language news reports (English, because it will serve as a global standard) published in the last century, the one steady outcome would be that, postwar, the newspapers became increasingly subjective. I often ask why the linguist in Chomsky never thought of doing that before penning Manufacturing Consent.

[James Cameron] was clear that ‘objectivity was of less importance than the truth’ and ‘the reporter whose technique was informed by no opinion lacked a very serious dimension’. – N. Ram at the James Cameron Memorial Lecture, 2012.

Like my journalist friends attribute incorrectly, Twitter, Facebook and the rest of the social media – Internet in their cargo-cult parlance – are not to be credited for this narrative inconsistency in the information revolution. I imagine Fitzgerald’s The Crack-Up being the first critical departure, which Hemingway, Capote and Thompson summarily noticed, eventually leading us here. Internet only came later, and the radical ethos surrounding the social media, which the Indian press loves to wallow in, was gifted to us by the hacker or cyberpunk counterculture of the eighties. That’s cyber-anthropology 101.

I understand that the seeping Americanism in all this is a little disappointing, but not ignorable. Let me stretch this indulgence by mentioning a few major happenings in the media industry of the US, completely missed by the local beat. Jeff Bezos, the founder of Amazon.com, acquired The Washington Post for $250 million as, what seemed like a gratitudinous act. Pierre Omidyar of eBay set aside an equal amount for a new media venture with gung-hos like Glenn Greenwald, Laura Poitras, and Jeremy Scahill. It arose as an opportunity from the growing frictions between the state and the press after l’affaire Snowden, aiming to tackle the entrenched biases within reporting and submitting to the moral scrutiny brought forth by a globalized environment. Needless to say, Greenwald would also carry along the treasure trove of classified NSA documents.

The fluffy idealism of tech billionaires does sound liberating at the first go, but speculations began doing the rounds of their intimacy with the law-enforcement and intelligence set-up, the very catalysts of this upheaval. That charge was led by a spunky breed of writers spewing fire through their pens, the haggard pirates proudly holding the last surviving bastion of gonzo journalism that was NSFW Corp. – recently acquired by PandoDaily, a Silicon Valley upstart backed by top venture capitalists. NSFW bears its leanings from the hallowed school of The eXile, an ‘outrageous’ yet highly readable tabloid published from Moscow. The last piece of the puzzle that I am trying unravel here is the hiring of seasoned TV broadcaster, Katie Couric, as a ‘global anchor’ for Yahoo!

What’s with these dollar-fuelled interspersions at the borderlines of media? The simple answer being: the power of content, a heady cocktail undoing the sensory deprivation that comes with news. Content is the new world order, as The Cluetrain Manifesto foresaw in 1999 – ‘markets are conversations’ and ‘hyperlinks subvert hierarchy.’ It is the same conversation that the NSA is trying to snoop and Google wants to capitalize on. It alters the media metanarrative by leveling the discourse, putting the spotlight back on the studios and newsrooms. Radiagate was its first nudge and Tehelka the baby-step. The Indian industry must learn that.

There have been some interesting experiments in the regional mediascape as well. Kafila.org is an online retainer of left-liberal tradition, but more feisty, interactive and wide-reaching than its print counterparts. Newslaundry and The Caravan are making decisive interventions into the metanarrative, but monetization remains their primary woe. Firstpost is basically a newspaper over the net, harboring little scope for innovation, and is backed by the same opaque funding sources that the readership is so wary of. While I was confounded by the math of sabremetrician Nate Silver, when he weighed-in on the $315 million takeover of the news aggregator and blog Huffington Post back in 2011, I am sure some lessons for a successful exit lie hidden in there. Few more can be picked up from ProPublica’s profitability. Closer to home, not much value creation has been witnessed since the 2008 buyout of Content Sutra by Guardian Media Group for roughly $30 million.

Beyond the number crunching, the larger argument to be made here is of the news generation becoming more socially and contextually aware, almost sentient, to the extent that it’s leaping out of the screen. One of the major challenges faced by the Guardian in presenting a story as complex, path-breaking and rapidly evolving as the NSA leaks was to keep the lay audience abreast. It pushed the boundaries of ‘digital storytelling’, learning from the past tryouts in convergence journalism like Firestorm and The New York Times’ Snowfall. The underlying plot glided over a vignette of multimedia and textual mash-ups to bring alive the subjects – with the message truly upending the medium. In this era of Human-Computer Interaction, the newsroom and ‘skunkworks’ will have to collectively engineer the content.

It is time to move over from the off-putting content management systems and understand that the news-cycle doesn’t stop at merely commenting, sharing, liking or trending. Bidirectional, community-driven ecosystems will have to be created around conversations and journalists should stop acting like the vanguards of objectivity. The old-fashioned structures of control and moderation need to be pulverized. NDTV and even Tehelka initially leveraged this symbiosis to a limited degree, but they have served their purpose. De Correspondent, a crowdfunded online journalism startup based in Holland has raised an impressive $ 1.7 million, coincidentally aspiring to meet the same ideals of New New Media. The consumers will become the producers, the global would have to exist in harmony with the local – allowing the news to breed virally, fostering a grand unified memefication of the discourse.

This piece is inspired by a 1996 paper, ‘Smashing the Stack for Fun and Profit’ by Aleph-One AKA Elias Levy, published in the underground hacker e-zine, Phrack. It revealed a pioneering new computer exploitation technique that still holds the Internet at ransom. The author had the honour of briefly working with the same research team as Levy at Symantec.

Pukhraj Singh

 

Two cheers to Nehru

SEVERAL revisionist historians have in recent times emerged as critics of Nehru and what passes for the Nehruvian legacy. Nehru’s fascination with the Soviet Union (a trait which he shared with his father, but not so much with his daughter, who had a more cynical realpolitik view), his commitment to state socialism, his obsession with recreating in Yojana Bhavan an imitation Gosplan, are targets for criticism from those who believe in a minimalist state and market mechanisms. However, a new school of thought, which includes among its adherents the historian Zareer Masani, and tangentially, the statesman Jaswant Singh, who focus on Nehru’s contribution to the fateful partition decision are on less solid ground. Their principal contention is that the Cabinet Mission Plan provided for a loose confederal India which would have preserved the historical (?) and geographic unity of the subcontinent. Given his desire to have a strong centralized Indian state (with a majoritarian bias, as Jinnah feared, according to Ayesha Jalal), Nehru scuttled the Cabinet Mission Plan by his outspoken and convenient interpretation of the same. Maulana Azad was upset about this. Even Sardar Patel was concerned about the impetuous nature of Nehru’s response.

Au contraire, Nehru’s rejection of the Cabinet Mission Plan was a brilliant move, for which, if for no other reason, we should be forever grateful to him. The Cabinet Mission Plan was a googly that pretended to be an option for a united India. In fact, it was pregnant with exactly the opposite, with disastrous consequences programmed into its very innards. First of all, provinces were not given an option about groupings. Assam, for instance, had no choice but to be grouped with Bengal.

Second, the principle of simple majority dominated the mission’s plan. Ten years down the road, undivided Punjab and the larger group that it belonged to, could secede by simply expressing the desire to do so by a simple majority. In fact, when a British journalist mentioned to Jinnah that the mission had given him the partition he wanted, Jinnah immediately understood it. He and his party ‘accepted’ the plan not as an end in itself, but as a first step to partition. Note when it came to Ireland, the British did not concede the principle of brute simple majority. After all, if all Irish residents had been polled at any point in time, the majority would have opted for independence. But in Ireland’s case, British hearts started bleeding for the Protestant minority in the north, which would come under the heels of the Catholic majority, in a free, united Ireland. The British did not even concede it to all the residents of British India as one unit. Hence, the ‘provincial option’ of the Cripps’ plan and the ‘grouping option’ of the mission plan.

Come 1957, as the Cabinet Mission Plan envisaged a reconsideration of a united India after ten years, undivided Punjab and undivided Bengal could have voted by a simple majority to secede. The entire Group A and Group B (which included Assam), could secede also. Suddenly, minority rights, so dear to the hearts of our erstwhile rulers could be conveniently forgotten.

The fact of the matter is that both undivided Punjab and undivided Bengal were doubtless Muslim-majority areas, but not in any overwhelming sense. In both cases, somewhere between fifty and sixty per cent constituted the so-called majority. But in 1957, if these states had declared independence by a simple majority, the Commonwealth run by people like Noel Baker, who were openly anti-India would have accepted these ‘countries’ as members and the U.N. would have meekly followed. This would have meant that the united India left to us by the Cabinet Mission Plan would have collapsed and India would not only have lost Lahore, Lyallpur, Montgomery, Dacca and Chittagong, but also Amritsar, Ludhiana, Jullundur, Rohtak, Gurgaon, Kolkata, Kharagpur, Asansol and Burdwan. The fate of Guwahati, Shillong and Tezpur, of course, would have been more problematic. This secession would have been perfectly legal under international law. If India had opposed it, we would have been accused of being undemocratic.

By 1957, the vocabulary of human rights was not fashionable. We would just have been accused of trying to thwart the wishes of the majority.

By rejecting the Cabinet Mission Plan, or rather by interpreting it to suit his convenience and thus, scuttling it, Nehru ensured that East Punjab, West Bengal and Assam did not secede from us. This decision also gave us land access to the native states of Patiala, Kashmir, Manipur and Tripura, all of which could easily have been ‘lost’ and lost with the protection of so-called international law – a law which was not applied to united India or to united Ireland!

The idea of a constitutional arrangement which was open to review after ten years was a bit of a joke. Lincoln took the stance that the Confederacy could not legally and constitutionally secede. If the U.S. had permitted a constitutional review every ten years or even every hundred years, the Confederate States of America may today have been vociferous and reactionary members of the U.N. The White majority in the Confederacy might have oppressed the Black minority. But then they are not Protestant descendants of Scottish settlers. So they cannot clamour for minority rights like the residents of Ulster!

Nehru saw through a plan that would have led to fragmentation in India on a massive scale. He realized that the ‘minorities’ of the Punjab and Bengal, who as it happened were concentrated in the eastern and western parts of those provinces, should have the same rights that had been granted to Ulstermen. He realized that a constitutional arrangement calling for decadal reviews was a dangerous, incendiary time bomb. He realized that partition would ensure a measure of geographic contiguity which would bestow stability to the Indian republic. Pakistan broke up in 1971, primarily because of a lack of geographic contiguity. In contrast, Biafra remains part of Nigeria.

So here are two cheers to Nehru if not an emphatic three!

Jaithirth Rao