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Kashmiri collective conscience rejects Pakistan’s bigotry, terrorism and radicalized narrative

Kashmir calls for peace and its people deserve justice to be seen as delivered as citizens of inclusive and democratic India.

ASHOK BHAN

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As terrorists recently killed many civilians,off duty policemen ,members of the Kashmiri Pandit and Hindu community, residing in Kashmir Valley, the response from the majority of community members shows that the soul of Kashmir is still intact. This came to the fore that soon after the targeted civilians killing series of inter-community dialogues known as “Kaath Baath” (dialogue) took place under the aegis of, the Kashmir Policy and Strategy Group.

They were attended by a galaxy of prominent civil societies activists of all age groups from both communities of Kashmir. The Kashmiris unitedly and vocally advocate the doctrine of peaceful coexistence and promoting human rights values among the communities. The civil society personalities unanimously say-the Kashmiri collective conscience rejects bigotry, terrorism and the radicalized narrative. The revival of our rich heritage, plurality, peace and human rights values is the befitting answer to the enemies of Kashmir. They say plurality is the keystone of our proud heritage and we shall unitedly endeavour to save it and revive it with societal unity and mutual trust and deep commitment.

It was once again highlighted that the soul and pristine of Kashmir is live and phenomenal aptly described by some poets in Persian:

GAR FIRAUS BAR-RUE ZAMIN AST, HAMI ASTO, HAMI AST

(If there is a heaven on earth, it’s here, it’s here, it’s here)

Therefore it is high time after the three decades of death and destruction suffered by all the Kashmiri communities, to look beyond the blame games and seriously discuss the ways and means for standing up unitedly against demons of doom and saving Kashmir by promoting Kashmiri’s proud heritage of coexistence, societal cohesion and progressive narrative. Peace-loving Kashmiris are striving for democracy and enjoyment of the peaceful right to life. Peace is the sine qua non for democracy and the promotion of human rights. The strength of civilizational ethos has defeated the evil forces that tried to thrust the alien socio-cultural narratives on Kashmiri Society. -Kashmir is the cradle of civilisation, innovation, science and technology for thousands of years, no terrorism and radicalism will ever succeed to obliterate that.-say the civil society leaders.

Some opine constituting, that a people’s truth and reconciliation commission may further strengthen the doctrine of reconciliation between the communities which has fallen apart for a variety of reasons and circumstances. Terrorism and the exodus of Kashmiri pandits have sharply divided the communities and there is a dire need to bridge the gulf and unitedly rebuild our robust plural society in the times ahead.

Kashmiris are waiting to warmly welcome the aborigines native exiled Kashmiri Pandit Community back home, as people say Kashmir is incomplete without the physical presence of this illustrious community, the Kashmiriyat is in peril and peace shall allude without them. The rich ethos of Kashmir and the humanitarian values are on display during the Shri Amar Nath Ji Yatra and nature’s wrath has brought the big tragedy of death and destruction by cloud burst near the holy cave. It has brought Kashmiris deep grief and condolence. People are hopeful that the Yatra resumes and people get the chance to display their humanitarian support to Yatris.

-Changing ground realities

The ground realities in Kashmir are people are sick of terrorists violence ,the huge participation of people in last panchayat and DDC elections demonstrates the People’s preference for peace ,democracy and development.possibly a mandate for moratorium to political rhetoric and negation of emotive blackmail by corruption and political ambivalence of traditional political class.

Kashmiris have huge expectations. The alienation caused psychologically by bifurcation of the State,into two union territories,ad-hocism and mismanagement of Kashmir affairs from time to time would be set right by the current dispensation as promised.The unrest in Kashmir actually is due to the unabated turmoil and political turbulence rooted deep in the denial of justice, disrespect to legitimate aspirations and skullduggery resorted to by New Delhi.It is compounded by dividing the glorious and prestigious State of Jammu & Kashmir that is perceived as robbing the Kashmir’s pride and its geo strategic importance.It is the high time that the Statehood is restored back urgently-say the thought leaders.

Aug. 5, 2019, Prime Minister Narendra Modi’s government revoked Article 370 of constitution, and with it, the region’s special status as a semiautonomous state is gone.The move divided the former state of Jammu and Kashmir into two union territories: a smaller Jammu and Kashmir, and Ladakh. Union government presented it as a patriotic project to bring economic development to the Kashmir Valley, the mountainous, area along the border with Pakistan that is also eyes annexation by Islamabad. Most Kashmiris say the change in the region’s status is part of an attempt by Modi’s administration to open up Valley for whole of the Country.Traditional mainstream polity is sceptical and say -the intend of current central Govt.is to change its demographics being the only Muslim-majority State in India.The change in Kashmir’s status is brought about without consulting local public and political opinion.

But the fact remains it was widely supported by Indians within Country and abroad.

-NORMALCY AND DEVELOPMENT ASSURANCE

PM Modi assured the people and said that while J&K would regain its statehood, the UT status for Ladakh will continue with the Centre seeing it as its special responsibility. He also minced no words in saying that Article 370 had been cast in the dustbin of history. This was seen as a move to assuage the sense of hurt over the downgrade to UT following the shock of the constitutional scheme of Article 370 being junked.

Modi promised that normalcy would return, saying, “I assure you that the situation will slowly normalise and your problems will reduce.” He said a handful of people were trying to foment trouble and they would be given a fitting reply by the people of J&K themselves after realising the benefits of complete integration.

Modi emphasised that doing away with Article 370 and the reorganisation of J&K was an internal matter of India. Saying that he understood that there would be different opinions and appealed for national unity, He appealed to the film industry, public and private enterprises to make J&K a part of their plans.

The PM Modi,said differences were part of democracy, but called on those who differed to keep national interest in mind and join hands with the government in imparting a new direction to J&K. He said the doing away of Article 370 and scrapping of Article 35A would soon see their negative effects fading away. He said important laws like right to education, minimum wages and political reservations for SCs and STs would apply to J&K and a large number of people who originally came to India from Pakistan would gain full rights as citizens.The people who have been living outside Kashmir due to terrorism shall be rehabilitated back in the Valley.

He said with Ladakh becoming a UT, its development was the “natural responsibility” of the Centre while development projects in J&K related to connectivity, like roads, railway lines and the modernisation of Srinagar airport, would be taken up speedily. He expressed confidence that panchayat members and heads elected last year would prove to be catalysts in increasing electrification and ODF status of villages.

Despite having a free hand for more about three years now to politically turn around Jammu and Kashmir, the Central government continues to enlist the support of local populations even as the India-China military stand-off continues in Ladakh. The alienation and despondency is on the decline.

The moot question arises is -has the removal of the special status brought Kashmir closer to India, reduced the sources of extremism and separatism, and undermined Pakistani influence in the Valley.The answer is -that the collective conscience of Kashmiris has rejected bigotry,terrorism and radicalised narrative.

-Militancy on decline

Most indicators show the terrorist violence in Kashmir have shown substantial decline.Mainstream Kashmiri politicians today are able to resume the political activities and the separatist politicians only are restive as they are fast loosing the relevance. Youngsters across South,north and central Kashmir are engaged in studies and sports activities etc.Pakistan is leaving no stone unturned to foment,aid and abet violence in the Valley but no takers,-for Rawalpindi, all bets are off on Kashmir. India’s national and strategic interest is best served by Kashmiris turning towards India for the bright future of current and future generations..

This is a worrying phenomenon for the parents and people,who are sick of militancy and killings of Kashmiri natives by their own trigger happy crazy Kashmiri youngsters.

The militancy in the Valley, however, has developed an autonomous raison d’etre in the absence of any political dialogue. Kashmir analysts are surprised that New Delhi’s policy and its political managers are so apolitical and naive, as not to be willing to leave any space or room for the Kashmiri leadership to exert a moderating influence that could prevent youngsters from taking up the gun.

The militancy in the Valley, however, has developed an autonomous raison d’etre in the absence of any political dialogue. Kashmir analysts are surprised that New Delhi’s policy and its political managers are so apolitical and naive, as not to be willing to leave any space or room for the Kashmiri leadership to exert a moderating influence that could prevent youngsters from taking up the gun.

The changing character of the insurgency/militancy is a serious warning signal for the reason people are in Introspection mode as to what is best way forward to exit from the death & destruction syndrome unleashed by terrorists and Pakistan,and bring about secured & better life for future generations.People expect the LG administration for a policy correction at all levels of governance, and a strategic shift, urgently to prevent drift,despondency and societal radicalisation.

The unrest in Kashmir has always been attributed to cross-border hostilities and terrorism. But actually the unabated turmoil and political turbulence in Kashmir is rooted deep in the denial of justice, disrespect to legitimate aspirations by various State governments and skullduggery resorted to by New Delhi from time to time.

-STATESMAN VISION NECESSARY

Kashmir deserves to be managed by a “Statesman’s Vision” that can encompass a comprehensive process,instead of misinformation,dithering and use of muscle power alone.Humane face of Indian democracy nurtured by freedom fighters,Mahatma Gandhi,Pt Nehru,& humanitarian approach of Vajpayee and

MODI-doctrine- Dil Ki Aur Dili ki Duri Mitanni Hia -is being extended to Kashmir as a vision to finally resolve the imbroglio.There is a dire strategic necessity for the restitution,return and rehabilitation of the exiled Kashmiri Pandit Community living out of Kashmir for more than three decades payba in the Valley or else the process of idea of India in Kashmir and restoration of peace would seemingly be flawed,faulty and incomplete.The aborigines Pandit Community has an existential stake in the Valley for their roots are engraved for more than 5000 years in the soil of Kashmir.Kashmiri Pandits are the bulwark against radicalisation and have enormous contribution in Kashmiri history and development.

One of the causes of the new age turbulence is attributed to the betrayal of democratic expectations. The youth had participated in large numbers in the electoral process in the 2014 state Assembly elections and voted out the incumbent government headed by Omar Abdullah. The experimentation of BJP-PDP combine government failed for its unholiness,contradictions within and mistrust.Consequently the governance went for a toss and regional/communal political polarisation deepened.

CHANGING PUBLIC PERCEPTION

Kashmir has been on the boil for more than 30 years. Tens of thousands of people, both civilians and soldiers have died and the population of Kashmiri Pandits exiled. Kashmir affairs seemingly messed up due to Pakistan’s proxy war.Terrorism has rendered the state, especially the Valley, without liberty and individuality. It has devastated the economy, education and normal living pattern, the plural ethos, and imperilled institutions. The societal psyche is turning cynical and despondent and that is what Pakistan and militancy have managed to do with the people of Kashmir. In the name of so called self-determination people have no voice of their own and the emotions are controlled and charged by proxies. People know the disastrous consequences of the harm Pakistan and terrorists have done to the current and future generations of Kashmir. But the anti-India sentiment that has grown over the years has seeped in that people refuse to see the logic.

The government has an understanding that use of military option alone is not a solution to the complex situation of Kashmir. It has to be a blend of engagement and dialogue with all the stakeholders. It is the psychological, attitudinal, social, political and economic grievances that need to be addressed. Therefore, the government should worry more about winning back the trust of the people and let the terrorism be handled by the security forces.

The Line of Control remains perpetually hot. Sometimes the unusual escalation results in a high death toll.The collateral damage to civilians living in the border areas is colossal. On the Indian side alone thousands of civilians had to be evacuated, makeshift camps set up to house them at safe distances, economic activities disrupted and schools closed in the areas adjoining the LoC and International Border. Besides the loss of human lives, houses were destroyed and damaged, cattle killed and injured and local water and electricity infrastructure disrupted.Inflitration of terrorists though marginal is on & on through borders.In recent times because of ceasefire agreement the LOC firings have substantially reduced.

PAKISTAN ELEPHANT IN THE ROOM

People are making a connection between the heating up of the LoC and terrorist attacks in the state and proxies of the Pakistan Army. The argument goes that by using terrorist proxies, the Pakistan Army distances itself from terrorist attacks and pays no price for its subterfuge. The ‘robust’ response of the Indian Army this time around, it is said, is meant to punish the other side by specifically targeting Pakistani Army posts.Despite this policy qua Pakistan the Kashmir continues to bleed -30 years it has been facing the terrorists violence unabated. After all how long -Kashmiri’s as on date have rejected Pakistan’s relevance in Kashmir affairs.

New Delhi is now attempting to approach the issues keeping in sight the fact that India’s strategic interests are intertwined with the goodwill of the Valley’s ordinary people including Kashmiri Pandits, and not the land alone. Before the new age violent unrest and upsurge gets further out of hand, New Delhi deals with the issues with a party independent “Stateman Vision.”

The Union of India is determined to act now and engage with the youth of today and Kashmir’s leadership in a serious dialogue. Political dialogue with all the stakeholders is an internationally recognised jurisprudence for conflict resolution. For New Delhi, sees it as the prudent and astute political & strategic approach for a resolution of the Kashmir imbroglio.Earlier central governments have always flip-floped on political and diplomatic efforts that never brought peace in Kashmir. Therefore, a course correction and a policy perception of Modi:2:0 -Sab Ka Saath and Dil ke Doori & Dili ki Doori Mitanni hia is the only way forward. Kashmir calls for peace and its people deserve justice,democracy and peaceful coexistence to enjoy fully the human rights .

Ashok Bhan, Senior Advocate, Supreme Court of India And; Chairman,Kashmir (Policy and Strategy)Group

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Policy & Politics

SHINDE VS THACKREY – DISSENT OR DEFECTION…?

Adv. Manjunath Kakkalameli

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On 21 June 2022, an unprecedented political movement took place in Maharashtra and once again pop-up the 10th Schedule or anti defection law.

Initially Shinde faction case was seeming like usual case of Anti defection but as it took root of the case, it got wider scope to decide few questions of law accordingly,

On 25th of June, Maharashtra Speaker Zirwal issued disqualification notices under the 10th Schedule to Shinde faction after the party sought their disqualification from the state assembly for the wants of non-joining of party meeting even after issuance of whip. Now the notice has been challenged before hon’ble Supreme Court stating failure to attend a party meeting or expression of disagreement with certain policies of the party cannot be a ground to disqualify under para (a) or 2(b) of tenth schedule of the Constitution, however, multiple petitions have been filed by the both the parties before Supreme Court on various ground and is pending before the court for considering whether the matter be referred to Constitutional Bench or not.

Since the Thackrey led MVA Government had majority & the act of rebel Sena leader Shinde has aided to dis- Stabled the government, in such a case does the act of team Shinde fall under the “act against the party”? if yes then right to dissent has no meaning. Because the team Shinde neither voted against the party or has given up their membership. The act of Shinde team seems to be against party policy & not against the party therefore, the friction between right to dissent & Anti defection has taken place.

Right to freedom of speech & expression vs Right to dissent –

The question of law rises here in the present case is whether right to dissent, with voice of majority fall under the ambit of right to dissent or not, if yes then whether the Tenth schedule violating the Basic Structure of the constitution. Because when we call right to dissent is right to freedom of speech & expression, it would gross violation of art. 19 (1) a of the constitution & when there is violation of any provisions of the fundamental rights would be violating the basic structure of constitution & when any law is against the basic structure of the constitution is deemed to be void.

During the hearing of the Shinde’s petition Senior Counsel Harish Salave strongly stressed on Voice of Dissent and Voice of Majority and Minority tyranny and said that voice of dissent can not be suppressed in a democracy.

In Kihota Hollohon Vs Zachilhu and Others, 1992 SCC Supp. (2) 651, the Tenth Schedule was challenged on the ground that, it violates the democratic rights of elected members of Parliament and the Legislatures of the States. It violates the freedom of speech, freedom of vote and conscience of a member. Rejecting the plea, the Apex Court held that, the provisions of Tenth Schedule do not suffer from the vice or subverting democratic rights of elected members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience. In India the freedom of speech of a member is not an absolute freedom. The provisions of the Tenth Schedule do not purport to make a member of a House liable in any ‘Court’ for anything said or any vote given by him in Parliament or State Legislature. It cannot be said that Article 105 or 194 is a source of immunity from the consequences of unprincipled floor crossing. That’s why the provisions of paragraph 2 of the Tenth Schedule do not violate any rights or freedom of elected members of Parliament or State Legislatures under Article 105 or Article 194 of the Constitution, and is thus constitutionally valid.

Inner Party democracy –

In any democratic set up voice of dissent that too when supported with Majority should be accepted along with voice of consent. Disaccord be accepted with accord, in true sense that would be the beauty of a democratic set up.

Till date it has been observed that any dissent against a party policy deemed to be anti-defection but mere dis agreement with party policy or every disaccord cannot be held as voice against party.

Gehlot vs Pilot-

In 2019-20 Pilot group had a rebellion attempt against Gehlot and was facing disqualification by the Speaker C.P. Joshi, wherein it was challenged before the Rajsthan High Court and The Raj High Court had framed 13 issues, question of law. However, in a settlement all such disqualification notices were withdrawn and the issue of Inner party democracy and Voice of Dissent remain unanswered.

Whip versus Disqualification

Another important question of law is regarding Whip “Whether Whip as an instrument of party discipline only applied to the action expected out of legislators inside the house? In this regard I remember, A proposed solution that had created the controversy was suggested by Manish Tiwari, Member of Parliament, Lok Sabha. The suggestion is relating to constitutional amendment to limit the scope of paragraph 2 (1) (b) of the bill. The Bill proposed by Manish Tiwari limits disqualification under Paragraph 2 (1) (b) to be a possible sanction only if the member dissents against a Whip issued in the following instances.

motion expressing confidence or want of confidence in the Council of Ministers,

motion for an adjournment of the business of the House,

motion in respect of financial matters as enumerated in Articles 113 to 116 (both inclusive) and Articles 203 to 206 (both inclusive),

Money Bill”.

The propositions made by Constitution (Amendment) Bill, 2010 are similar to the recommendations made by the Dinesh Goswami Committee on Electoral Reform where it was suggested that disqualification must be imposed only in case of vote of confidence or no-confidence motions. By limiting the ambit of disqualification, this bill seeks to make the necessary change of creating greater room for policy expression, fearless debate and discussion in the Parliament. Such a law would liberate legislators from the whip imposing fear of losing their membership except in cases where the life of the government is threatened by a no-confidence motion, money bills and some crucial financial matters.

Dissent as Right to freedom of Speech & expression –

The Constitution (Fifty-Second Amendment) Act, 1985 which has since popularly come to be known as the Anti-Defection law, has been the subject matter of a controversy from the very beginning. It has been questioned on several grounds viz, that it is violative of the basic structure of the Constitution, that it is violative of the fundamental principles of parliamentary democracy, its violate democratic rights of the elected members of parliament and the legislatures of the State, and is destructive of the freedom of speech, right to dissent, freedom of vote and conscience, it violates the freedom under Articles 105 and 194 of the Constitution.

Now considering the act of rebel Sena leader, CM Shinde and his group neither left the party at his will nor talked against party.

Because, considering entire facts on record, the act of Shinde Faction, Certain disagreements with Party Policy does not amount to Anti defection or all the dissent does not amount to anti defection same was observed in the case of In Balchandra L. Jarkiholi Vs B.S. Yeddyurappa 2011.

Delivering the dissenting judgement, Mr. Justice N. Kumar of the High Court set aside the impugned disqualification order of the Speaker and held that an act of no confidence in the leader of the legislative party does not amount to his voluntarily giving up the membership of the political party. Similarly, the act of expressing no confidence in the Government formed by the party, with a particular leader as Chief Minister, would not also amount to voluntary act of giving up the membership of the political party. Deserting the leader and deserting the Government is not synonymous with deserting the party. Dissent is not defection and the Tenth Schedule while recognizing dissent prohibits defection. Right to dissent is the essence of democracy, for the success of democracy and democratic institutions honest dissent has to be respected by persons in authority. which was later confirmed by hon’ble Supreme Court.

Therefore, if we believe in Democracy, should also believe in Right to Speech & Expression ensured as fundamental right under Article 21 of the constitution of India, should believe in Party Democracy, & if Right to speech is recognized under party democracy then dissent is not defection. if dissent is not defection, then Para 2 (1) a of the tenth schedule of the constitution violating the Basic Structure of Constitution.

The Maharashtra Political crisis case has great potential to the hon’ble Supreme Court to decide the much waited and unanswered question of law ,which had paved multiple time in Indian politics , Would hope that the Supreme Court will constitute the Constitutional Bench with 05 or more judges and deliver another landmark judgment.

The Author is practising advocate at Bombay High Court.

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Policy & Politics

COURTS OUGHT NOT TO SUBJECT TO JUDICIAL SCRUTINY, WHAT IS ESSENTIALLY A PURELY POLITICAL BARGAIN

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Welfare measures are political bargains struck by a thinking electorate: The various ‘welfare measures’ (pejoratively called ‘freebies’ by the Petitioner), are political bargains between the ‘electorate’ and the ‘elected’. The ‘electorate’ is capable understanding the terms of this bargain and its implications, which is why we have constitutionally mandated ‘universal adult franchise’. Such decisions are neither justiciable, nor do they exist any judicially manageable standards for such determinations.

Judicial reassessment of such issues makes the court enter into political thicket: A judicial scrutiny of such bargains necessarily presupposes that the electorate is incapable of making an informed decision and makes the court enter into a political thicket, which this Hon’ble Court has refused to do repeatedly. This is because the judicial wing of the state has neither the expertise or the democratic mandate to dictate the terms of the political bargain between the electorate and the elected.

Restrictions envisaged limit right under Article 19(1)(a) and not covered by Article 19(2): The making of promises of welfare measures and the hearing of such promises are both protected under Article 19(1)(a) of the Constitution. Restriction on such speech does not fall under any of the eight heads of exceptions under Article 19(2). In any case, it is impermissible to restrict freedom of speech and expression by judicial directions and the same can only be done by way of a law passed by Parliament/legislature.

If court inclined to examine, it will be in fitness to first refer the matter to Constitution Bench to determine if such issues can be gone into by the Court. In case, this Hon’ble Court is still inclined to consider the legality of welfare measures, it is prayed that the preliminary issue of whether such issues can be adjudicated by Courts ought to be referred to a Constitution Bench.

Kindly see:

Public Interest Foundation v Union of India, (2019) 3 SCC 224 where a Constitution Bench of this Court refused to issue directions barring election candidates with criminal antecedants on the ground that the said power was exclusively with Parliament (Paras 105-107, 118-119)

Asif Hameed & Ors. v. State of J & K, 1989 Supp (2) SCC 364 (Paras 17-19)

Welfare measures are in tandem with the socialist and welfare objectives of the Constitution and necessary for ensuring equality and achieving economic development

We have given ourselves a welfare/socialist state whose objective is to promote and achieve social/economic justice and equality, which is realized through welfare measures: The preamble to the Constitution is categorical about the nature of the Indian state (being socialist) and its objectives, which include, inter alia, social/economic justice and equality. These objectives find an echo in various directive principles of state policy such as Articles 38, 39, 39A, 41, 42, 43, 43A and 47 which inter alia, call for securing for citizens the right to adequate means of livelihood for all citizens and equitable distribution of material resources of the community for the common good.

Successful examples of Welfare measures include PDS for food, provision of night shelters for the homeless, free/subsidized education at the school and college level, free drinking water, mid-day meals and many more.

The Scandanavian Countries in particular that offer high amounts of social support in particular, free and equal access to social services, regardless of income or economic need. The essential elements of this modeal are large public sector, broad universal services, productive investment in health education and job training and strong work incentives with progressive taxation. These countries have some of the highest human development index in the world.

Welfare measures develop ‘capacity’ of the people, enabling them to contribute to economic growth: The characterization of ‘welfare measures’ as ‘freebies’ overlooks the fact that such measures are essential for developing ‘capacities’ of the people of the country and hence generate a workforce which can then contribute to economic growth. Given the vastly inequitable distribution of wealth in the country, but for government support, the majority cannot develop any ‘capacity’ to be able to generate wealth.

Our collective consciousness is replete with examples of poor children who have risen from the humblest backgrounds to achieve excellence in various fields. In many of these cases, this has been facilitated by because of the so called ‘freebies’ that have provided opportunities of earning and improvement in standard of living would be restrict to the very few at the top with the wherewithal to develop their ‘capacities’.

In any case, social welfare measures will not cause undue financial strain on the economy: This is because the Fiscal Responsibility and Budget Management Act, 2003 and such similar legislative measures at the state level that restricts the deficits that a government can run. Hence, all social welfare measures will be managed within this framework and the limits imposed thereby.

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Policy & Politics

Privacy implications in India of the overturning of Roe v Wade in the US

The journey from the winters of 1973 to the summer of 2022.

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June 24, 2022 witnessed perhaps one of the single-most momentous blowbacks to the notion of privacy, the consequence of which would certainly send ripples across the globe both on an ideological and a judicial-legal plane. On this day, the Supreme Court of the United States of America on this day overturned the watershed case of legal and feminist jurisprudence, Roe v. Wade of 1973 (“Wade”), effectively disrobing women in the country from exercising the erstwhile right to abort. The ramification of this ruling underlines a particularly interesting conundrum – in the wake of Big Tech collecting, storing, and processing personal data and information incessantly and sharing the same with law enforcement agencies (“LEAs”) as and when mandated, how can the most vulnerable and sensitive aspects of a person’s personal life be afforded protection to in the absence of adequate safeguards?

It is common knowledge that the tracking and storage of personal data and information accompany with it a saddening saga of squander and abuse – history is witness to this. With the over-ruling of Wade, it is now open season, wild-wild-west – the LEAs theoretically have a free hand to collect location data, forage through text messages and SMSes, dig through web-browser histories, online purchases, and personal e-mails, and use period-tracking apps surreptitiously to prosecute not only the users but also the intermediaries who may provision the said services.

The logical, unfortunate conclusion to the series of events that may potentially transpire hereon would be an absolute nightmare for all the people and families who were promised significant reproductive autonomy in the US for the past five decades. To chill reproductive freedoms, we may now even notice medical and health services providers track pregnant patients and LEAs exploit tools of surveillance to enforce existing abortion laws.

CALM BEFORE THE STORM?

If a report from Vice News were to be believed, accessing data troves in the US is an absolute breeze – for as meager as $160, one could access a week’s worth of data of the credentials and the geo-indicators of people who visited Planned Parenthood facilities (an American NGO which provides for sexual healthcare services). One possible reason why such a glaring infraction of personal privacy exists in the US in broad daylight is because of a ‘gray area of the law’. This gray area pertains to the Health Insurance Portability and Accountability Act, 1996 (“HIPPA”) which covers such data or information that is shared by the individual with a doctor. However, HIPPA does not secure any such data or information which is shared with a third-party. Hence, taking into consideration the possibility that third-party apps may share such data or information with yet another third party, the risk of abuse is glaring, to say the least.

There are two consequential takeaways for policymakers closer to home in India here. First and foremost, the guardrails for the protection and preservation of personal data and information in India are starkly lacking. And, second, in the absence of an omnibus privacy legislation, individuals and their data are at the mercy of private parties and the government to be exploited and be capitalized on.

Certainly, the Supreme Court of India did affirm that the Right to Privacy forms an integral part of the Right to Life and Liberty guaranteed by Law under Article 21 of the Indian Constitution – certainly no two thoughts about it. However, because of its delicate nature, the degree of safety and consideration that protection of medical data warrants is a notch above the safety standards mandated by the protection of general data. Taking into consideration the rapid growth of the Indian telemedicine market, the onus falls upon the Government to ensure that the prospective economic benefits of the proliferating market segment do not imperil the tenets of the Right to Privacy, especially that of health data. A nuanced and considered approach is the call of the day.

FLAWS IN THE INDIAN MEDICAL DATA POLICY FRAMEWORK

Perhaps the most pertinent issue in the framework as it stands today is the ambiguity in the understanding of ‘health data’ or ‘medical data’ and what it constitutes. Case in point, the Information Technology Act, 2000 (“IT Act 2000”), along with the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“SPDI Rules”), accords the status of sensitive personal data or information (“SPDI”) merely on such data which are either related to the physical, physiological, or mental health of an individual. However, the current legal framework does not require such data to be anonymized – hence, it is quite feasible for any entity (government or third-party) which is in possession of such un-anonymized data to ascertain who it pertains to and mine such data, thereby risking misuse.

Despite several administrative attempts, the foul of conceptual legislative clarity remains. For instance, let us take into consideration three frameworks that pertain to or which touch upon personal health data, namely – the ‘Strategy Overview: Making India a Digital Health Nation Enabling Digital Healthcare for all’ document of the National Health Authority, dated July, 2020 (“NHA Strategy Overview”), the draft Digital Information Security in Healthcare Act, 2018 (“DISHA”), and the draft Data Protection Bill, 2021 (“DPB”). In the NHA Strategy Overview, “personal health data” encompasses information and data relating to the medical conditions and subsequent treatments undertaken by a party. In comparison to the standards of the NHA Strategy Overview – where on the one hand, the DPB covers only information regarding the physical or mental health of the individual, on the other, the DISHA goes a notch up and deals with data extracted from body-part donations and data derived from medical tests and bodily examinations as well. The discordance and dichotomy in the data protection frameworks indeed are glaring. Worse still, none of them reflect upon the surveillance misuse that can manifest from the status quo!

It indeed is well established that policy frameworks conceptualize data in general, and medical data in specific, as an incorporeal, intangible resource and an effective enabler for economic progress. Data is predominantly understood as a resource (like oil), available for human extraction, and exists independent of the bodies producing it. The present-day health data policy framework in India is inordinately concentrated on the data and information that is collated and collected by primary healthcare service providers (like hospitals and medical establishments) or secondary healthcare service providers or healthcare-related service providers (like insurance companies). We today have smartwatches and mobile apps which gather data on and monitor a person’s activity levels, heart rates, sleep cycles, and daily moods, and which also can track period-cycles. Hence, the draft DISHA-DPB framework presents a thought-provoking policy and legal lacuna – with the growing use of these smartwatches and third-party apps, can the law protect from exploitation the digital footprint of an individual that is left behind?

Yet another species of unease that arises is the difficulty in dealing with the unfettered access to medical data and information that the government (both at the Central and the State level) and LEAs can procure either from third-party apps or from IoT devices. To cite an instance, it is common knowledge that in the wake of the Covid-19 pandemic, both the Central as well as several State Governments used platforms and apps to track and contain the infection. What is perhaps not so commonly known is that for all the virtue and nobility that such contact tracing mechanisms may have brought about, they also institutionalized mass surveillance to a very large extent – one needs to understand that most of these apps often devolved into mechanisms of trickery by surveilling, monitoring and controlling the movement of individuals in the cloak of ‘lockdown enforcement’. Add to this, by way of the mandate provisioned in the proviso to Rule 6(1), and in Rule 6(2), of the SPDI Rules – sensitive personal data and information (including medical and health data) which is shared by an individual with third-party apps and platforms can legally be procured by LEAs without the explicit permission of the individual to whom such data belongs to. This gives rise to a certainly worrying trend, especially when you look at it from the privacy lens!

WHERE CAN WE GO FROM HERE: STEPS FOR THE TIMES AHEAD

In no uncertain terms, the pressing priority of the day in the Indian data-landscape is for lawmakers to cogitate considerately upon a definition of ‘health data and information’. A good starting point to fortress individual rights over their personal health would be to place digital health data and information collected by third-party apps and platforms, as well as by IoT devices, under the ambit of the draft DPB-DISHA framework.

Subsequently, legislative intent must deliberate over the fact that a certain category of health data is more intimate and sensitive than others (like, mental health issues faced by an individual vis-à-vis the height of that person) and may necessitate a higher degree of care and protection. Hence, to ensure that the individual possesses absolute and unqualified autonomy over such data of such a delicate character, a graded approach to health data is necessary.And lastly, lawmakers in India must take into account that in the wake of ‘data-sharing and interoperability’ practices, the policy-framework governing health data and information does not trade off privacy principles in the veneer of supposedly facilitating public welfare. Both healthcare service providers, medical insurance providers, and other healthcare-service providing third parties should enact protective policies which ought to be designed to keep a tight lid on sensitive personal health data and information and associated medical records and histories. Along these lines, to take a cue from the European General Data Protection Regulation (“GDPR”), wherein data subjects have the ‘right to erasure’ as protected under Article 17 and Recital 65, GDPR – in India as well, individuals should also have the right to ensure that their sensitive personal data and information is erased if and where the said individual objects to the collection or processing of her/his health data and information.

The United States’ decision of Dobbs v. Jackson Women’s Health Organization (the regressive U-turn precedent to Wade) did ensure for certain one thing – that the frigidity of the winters of 1973 would certainly chill the spine of women fifty odd years after, in the summer of 2022. Trust, accountability, and transparency – at a time we need them the most are indeed the absolute, dire necessity of the moment.

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Policy & Politics

CODE ON WAGES: AN IMMACULATE REFORM?

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DA hike

No establishment which depends for existence on paying fees less than living wages to its workers has any right to continue. By living wages, it is meant more than the bare subsistence level- the wages of decent living” – Franklin D. Roosevelt

The multiplicity of labour laws and their compliance burden has often been cited by domestic industries and foreign investors as an obstacle to investment. With the objective of increasing investor confidence and simplifying and rationalising the existing labour laws, the government announced an amalgamation of 44 labour laws into 4 codes, namely on (i) wages; (ii) industrial relations; (iii) social security and welfare; and (iv) occupational safety, health and working conditions. The Code on Wages 2019, the first amongst the four codes, was enacted to amend and consolidate the laws relating to wages and bonus and matters connected therewith or incidental thereto. This code consolidates four major legislations namely the Payment of Wages Act, 1936, Minimum Wages Act, 1948, Payment of Bonus Act, 1965 and Equal Remuneration Act, 1976 which basically regulated the wages received by the workers.

Recently, it had been in news that the Government is eyeing to enforce these legislations shortly. In the backdrop of this development it becomes essential for one and all to become aware of some of the problematic elements of the Code and the Draft Central Wage Rules such that one may be prepared to deal with the same and if required devise appropriate ways to mitigate its effects.

AREAS FOR RECONSIDERATION AND IMPROVEMENT: FIXATION OF NATIONAL LEVEL FLOOR WAGE

In 2018, the Government of India constituted an Expert Committee under the Chairmanship of Dr. Anoop Satpathy for fixing the National Minimum Wage. In the final report titled Report of the Expert Committee on determining the Methodology for Fixing the National Minimum Wage of January 2019, the committee submitted its recommendations after considering the existing labour conditions, the guidelines of the Indian Labour Conference of 1957 and the Supreme Court case of Workmen v. Reptakos Brett & Co., and fixed the National Minimum Wage equal to Rs. 375/ per day, irrespective of the sector of employment, skill or whether the place of employment was rural or urban. However, the recommendation, was not incorporated in the Code and the National Floor Minimum Wage was fixed as low as Rs. 178 per day, perhaps less than even the existing wage rate at certain places.

Section 9 of the Code provides for the determination of a National-level floor wage, which would basically set a minimum benchmark for payable wages. For the purpose of making the quantum of wages reasonable as well as uniform this is a welcome policy measure introduced by the Government. In that regard, Rule 3 of the Draft Central Rules states, that the size of a general working class family would be deemed to be 4 members, wherein the earning member would be counted as 1 consumption unit, spouse as 0.8 and 2 children as 0.6 consumption unit each. This is where some problem creeps in to the Code. This calculation does not account for the elderly and other dependents who are generally present in an Indian family. Even as per the data available from the 2011 Census, the average household size in India was 5 (exact mean value 4.8). Thereafter, the said rule refers to a requirement of 2700 calories per day per consumption unit, which again is barely enough in consideration of the nutritional requirements. It is assumed that women will consume 20% less and children will consume 40% less than that assigned for a male member, thus making the law insensitive to women and static and unresponsive to the increasing nutritional requirements of growing children (a 14-year-old child may not have the same diet as that of 7-year-old child). Though this rule might not lead to nutritional deficiencies per se, yet provided the opportunity, it might neither contribute expectedly in improving the condition of health and malnutrition among women and children nor in improving the social status of women in the society.

Further, the method provided for calculating house rent as 10 percent of food and clothing expenditure disregards the realities of workers living in cities and the existing cost of living and might fail to ensure them liveable housing conditions. Lastly, the provision for setting aside 25% of minimum wages for expenditure on children’s education, medical needs, recreation and to meet contingencies, also appears to be insufficient, as the difference in cost rises to over seven times in urban centres, where the average expenditure in government hospitals is Rs 7,189 as against Rs 42,540 in private hospitals.

Observing the high costs of education, medical facilities etc. these days, the provisions do not seem adequate.

PERIODICITY OF FIXATION OF FLOOR WAGE

Rule 11(4) of the Draft Central Rules states, that the Central Government “may” revise the floor wage, ordinarily every five years and also “periodically” undertake to adjust the variations in the cost of living, in consultation with the Central Advisory Board. Use of these uncertain terms open scope for delay in the process of revision and can lead to interpretations and misinterpretations that may result in stagnation of floor wage rates in future and thus defeat the purpose of floor wage rates itself. Thereafter, even the period of revision of floor wages coincides with the period of revision of minimum rate of wages and since former is the point of reference for the latter, the periodicity of revision of floor wages should be shortened, for the expected realisation of its raison d’être.

BONUSES TO ALL

Initially the scope of guaranteed bonus (not linked to the performance of an individual) was restricted only to those employees who earned up to Rs 21,000 per month. The new Code refers to stipulation of a wage threshold by the appropriate government, and employees whose wages did not exceed this amount would be entitled to a guaranteed bonus which would be in the range of 8.33 percent to 20 percent, depending upon the allocable surplus available in the organisation. However, the Code provides that even those employees who earn above this threshold, would be entitled to receive a bonus (in the same percentage range) and the amount payable would be calculated as if their wage was such an amount, so determined by the government or equal to the minimum wage fixed by the appropriate government, whichever would be higher. Now this, would not only dilute meritocracy and add to an organisation’s cost burden but also lead to issues in compliance, for Companies having operations in different states of the Country, if the different state governments fix a different ceiling for payment of bonus. Thus, employees receiving the same pay might become eligible for different amounts of bonuses.

CODE SANS WAGE THRESHOLD

Obligations relating to payment of minimum wages have been extended to all employees that is individuals even in administrative and managerial roles, without any wage threshold, as per Section 5 of the Code. In comparison, the existing Payment of Wages Act currently extended only to those individuals whose wages did not exceed Rs 24,000 per month. Since no such wage limit has been contemplated by the Wage Code, these provisions might consequently be applicable even to senior employees, including even the one’s in the highest position in the organisation. This makes matters cumbersome and onerous for employers, especially when it comes to re-devising and structuring the pay and other benefit agreements of those senior employees, considering such arrangements generally involve claw back and other deduction provisions (which take away a substantial part of that which has been given to them), which may not be consistent with this law.

CONCLUSION

The Code on Wages, 2019 is no less, than a landmark in the Indian Labour industry, especially with respect to the extent of simplification it has brought with respect to the various enactments, by meticulously consolidating the same in one single enactment. The new Codes are about to be enforced shortly but yet there are certain aspects which are problematic and require reconsideration. Firstly, neither the quantum National Floor Wage corresponds with the guidelines of the Expert Committee nor does it acknowledge the ordinary Indian family size and structure and adequately account for the actual needs and requirements of its beneficiaries.

Secondly, use of uncertain terms with respect to the periodicity of wage revisions and coinciding periods of revision of National Floor Wages and Minimum Wage Rates can lead to misinterpretations and consequently result in stagnation and delay in the process of revision of wages. Thirdly, issues such as lack of wage threshold and lastly, provision for payment of bonus to all, adds further uncertainty in the law and results in increased costs for the employers, thereby defeating one of the very fundamental objective of introducing this Code itself, that is of increasing the ease of doing business in India and providing an employer friendly work environment to the investors.

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Policy & Politics

Delhi HC facilitates school admission

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While emerging as a very strong voice for the voiceless, the Delhi High Court in an extremely laudable, learned, landmark and latest judgment titled Kamini Arya Through Perokar vs The State NCT Of Delhi in Bail Appln. 2165/2022 pronounced as recently as on August 3, 2022 has taken suo motu cognizance to facilitate admission of an 8 year old child to school which could not be facilitated for the reason that her parents were in judicial custody in a murder case since July 2021. It must be mentioned here that the Single Judge Bench of Hon’ble Ms Justice Swarana Kanta Sharma minced just no words to espouse child’s cause while observing that, “The court is of the opinion that the child must get admitted in a school at the earliest so that shadow of no unpleasant happening falls upon the child’s life to darken her future.” It is also most pleasing to learn that the Delhi High Court in this notable case made it absolutely clear that the child, being an individual Indian citizen, enjoyed the Fundamental Rights including the Right to Education and that the welfare of child should not only be considered in cases dealing with family disputes but also like the present one.

At the outset, this most commendable, cogent, courageous, composed and convincing judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma sets the ball rolling most promptly by first and foremost putting forth in para 1 itself that, “The present application has been filed by the petitioner seeking interim bail for two weeks in FIR No. 323/21 registered at P.S. Mohan Garden under sections 302/365/292/397/411/120-B/201 & 34 of the Indian Penal Code, 1860 (‘IPC’). The petitioner and her husband, who is the co-accused in the aforementioned FIR, have been in judicial custody since 11.07.2021. The application has been moved by the mother of the child on the ground that she is concerned about the admission in a school of her child, who is about 8 years of age. It is stated that without her presence, she cannot be admitted in any school.”

No doubt, the grounds forwarded by the mother of the child are bona fide and worth considering seriously by the Court. The child is just about 8 years of age and so definitely the mother’s presence is inevitable to get the child admitted to school. This was considered seriously also by the Court!

To put things in perspective, the Bench then envisages in para 2 that, “The interim bail application of the petitioner has been dismissed by the ld. ASJ, Dwarka Court, vide order dated 21.05.2022 wherein the ld. ASJ opined that the ground on which the petitioner has approached the court for bail, i.e. getting her daughters admitted to school, is not of such a nature which can be termed as a compelling circumstance or intolerable grief. The application was thus dismissed by the ld. ASJ.”

As it turned out, the Bench then points out in para 3 that, “The court is informed by the learned counsel for the applicant that the elder sibling of the child is studying in the secondary school branch of Co-Ed Pry. School, West Zone, New Delhi – 110059. It is prayed that the child in the present case may be admitted in Nursery Class in the aforementioned school.”

As we see, the Bench then discloses in para 4 that, “In the present case, it has come to notice of the court that the applicant, i.e. the mother of the minor child, is in judicial custody due to her alleged involvement in the murder of an old lady whose body parts were severed and disposed of in a drain.”

As things stand, the Bench then brings out in para 5 that, “During the course of arguments on the bail application a query was put forth by this court and the court was informed that the presence of the applicant/mother is not required for admission of the child in the school and the Aadhaar Card of the mother shall suffice. The same has been duly verified by the Investigating Officer (IO) who has filed a reply from the Principal of SDMC, Co-Ed Pry. School, West Zone, New Delhi – 110059, wherein it is stated that the child’s admission can be done without the Aadhaar Card if the child has a certificate bearing the child’s date of birth from any government institution. It is further stated that any local guardian of the child can also get him/her admitted in school.”

While unequivocally underscoring the huge importance of education in a child’s life, the Bench then opines in para 6 that, “In my opinion, education is the first step towards tackling social evils, especially poverty, inequality and discrimination. Every child, irrespective of caste, religion, sex, or economic background has been guaranteed right to education. An educated individual can make informed decisions, first for themselves, and then be able to contribute constructively towards the progress of the nation and society at large.”

While sending out the most simple, straightforward and strong message to all the Judges, the Bench then mandates in no uncertain terms in para 7 that, “Once it comes to the notice of the court that a child or an individual is deprived of a fundamental right, the courts have to ensure that the fundamental right is enforced and there is no impediment for any individual to enjoy the same. The court should not fail in its duty at any point of time in this regard.”

Most remarkably, the Bench then further adds in para 8 that, “Right to Education is a fundamental right guaranteed to every citizen under Article 21-A of the Constitution. A child must not suffer the consequences, on account of their parents having been in judicial custody for a crime which is yet to be adjudicated upon by the court. This court is duty bound to enforce fundamental rights of every citizen and in this case right to education of the child.”

Most forthrightly, the Bench then also unambiguously maintained in para 9 that, “The Constitution guarantees protection of independent identity and individuality to every Indian citizen. Constitution of India is the supreme law of the land and this court is bound to protect the rights of every individual enshrined and guaranteed by the same. Especially in the present case, where the right to education of a child is at stake, it is imperative that the court intervenes timely and upholds the right envisaged in the Constitution to protect the future of the child.”

Needless to say, the Bench then notes clearly in para 10 that, “This court is of the opinion that the child must get admitted in a school at the earliest so that shadow of no unpleasant happening falls upon the child’s life to darken her future.”

Most significantly, the Bench then state in para 11 what constitutes the cornerstone of this learned judgment that, “At the cost of repetition, it is opined that in the present case, the child is an individual Indian citizen and enjoys her own Fundamental Rights given to her by virtue of her being born in India, Right to Education is the child’s fundamental right. In the present unpleasant situation of the case, the court has to become the voice of the voiceless child. The parents are in judicial custody and the prime concern of the parents is education of the child. It is not only in cases dealing with family disputes that the rights and welfare of the child should be considered but also in the cases as the present one, the courts can become and act as the parent of the child and ensure that the child is not deprived of its Fundamental Right to Education. Depriving any child of education due to family circumstances should not be allowed to every extent possible. An educated child educates the entire family and becomes an asset to the nation.”

Quite forthrightly, the Bench then directs in para 12 that, “In the circumstances, at this stage, this court feels the need to exercise its discretionary powers under Article 226 of the Constitution of India and take suo-motu cognizance to facilitate the child’s admission in a school so that the child does not lose out on the current academic year i.e. 2022-23. It is therefore directed that the SHO concerned will get the child admitted to the school adjacent to the senior branch of the school in which the older sibling of the child is already enrolled and pursuing her education.”

Furthermore, the Bench then lays down in para 13 that, “The Principal of the school will extend full cooperation for the admission of the child. A compliance report will be filed within 10 days. The identity of the child and the school in question is not being mentioned in this order to protect the privacy and dignity of the child.”

What’s more, the Bench then aptly points out in para 14 that, “It is submitted by the counsel for the petitioner that the petitioner is satisfied with the relief that has been granted. Considering the petitioner was seeking bail only on the ground that she needed to fulfil her responsibilities as a parent and get her child admitted to school, permission is now sought by the counsel of the petitioner to withdraw the present application.”

As a corollary, the Bench then reveals in para 15 that, “In view of this order, the learned counsel for the applicant states that she is satisfied with the order and does not press her application at this stage. Permission is sought to withdraw the same.”

In this context, the Bench then quite ostensibly directs in para 16 that, “In terms of the above, the application is dismissed as withdrawn.” Finally, the Bench then concludes by holding in final para 17 that, “Ordered accordingly.”

All told, it definitely merits no reiteration that all the courts must in similar such cases emulate what the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma of Delhi High Court has laid down so elegantly, eloquently and effectively in this noteworthy case! In essence, the Courts must definitely become the voice of the voiceless as we see so very ostensibly in this leading case. It also must be definitely underscored that the Courts must also prima facie ensure that the process itself does not become the punishment due to which the long term interest of the child gets jeopardised. No doubt, we saw how in this case the Delhi High Court so very commendably took suo motu cognizance to facilitate the school admission of the child whose parents are in custody and thus ensured that the paramount interest of the child to education is safely protected. Of course, it must be said that this is definitely the best way in which ideally all the Courts in our country must always act and not just turn away their face citing process, procedure etc! There can be certainly just no denying or disputing it!

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Policy & Politics

PRADHAN MANTRI AWAS YOJANA: RS 8.31 LAKH CR INVESTMENT APPROVED

Anuj Puri

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Union Finance Minister Nirmala Sitharaman

In Finance Minister Nirmala Seetharaman’s words, India stands on the threshold of Amrit Kaal, or the ‘Era of Elixir’. Regarding the country’s real estate sector, we can be a little more restrained with such definitions. Still, there is little doubt that the industry has made remarkable progress since it attained independence 75 years ago. Real estate has not been left behind – quite the contrary.

This once hugely beleaguered sector has made history-defying forward strides, especially in the last 8-10 years.

Today, massive transformation across sectors and industries has assured India a recognizable position in the new world order. The real estate sector features prominently in this revitalized avatar of a country on the move. Let’s reflect on what has transpired over the years and take a look at what lies ahead for the sector.

The Winds of Change

As India’s population grew over time, cities expanded to create habitable localities and industries for its economic upliftment. Chandigarh was the first planned city of independent India – one of the successful trials of urban planning and modern architecture. To address the ever-increasing need for housing, the government set up institutions like the Housing and Urban Development Company (HUDCO), City Industrial and Development Corporation (CIDCO), and the National Housing Bank (NHB).

The liberalization of policies in the 1990s facilitated significant changes in the real estate sector. Many international companies jostled to establish businesses in India, triggering a consistently increasing demand for commercial and residential real estate.

The rapid growth of the IT-ITeS sector resulted in the expansion of new urban centres across major cities like Bengaluru, Chennai, Hyderabad, Kolkata, MMR, NCR, and Pune. These cities were the first to witness changing skylines and rapid vertical development.

At the turn of the century, the sector was further invigorated when foreign direct investments allowed the entry of global investors. This catalysed the development of malls and other organized retail spaces across the country.

PMAY: With the Pradhan Mantri Awas Yojana (PMAY) program, the social housing sector – mainly aimed at the economically weaker sections – has gathered momentum over the last decade. PMAY was launched with a specific and ambitious target to provide Housing for All by 2022. In the country’s urban areas, the development has been tangible.

CLSS: To provide momentum to affordable housing and generate demand for it, the government has provided for subsidized interest to be paid to financial institutions lending to borrowers in this housing category. The cost of ownership became easier on prospective buyers and empowered women with the social security of having their own homes – a significant sea-change in a once highly patriarchal society.

Smart Cities Mission: The Smart Cities mission aims to develop 100 cities that are technology-enabled to drive economic growth and offer significantly improved quality of life to citizens. Currently, there are 5,151 projects under this mission across the identified cities, with investments to the tune of INR 2,05,018 crores.

CRITICAL REFORMS

Various reforms and structural changes implemented in the government have been instrumental in altering the real estate sector. Today, we use terms such as governance, transparency, and accountability, and stakeholders are evaluated on these parameters.

Many corporate business houses have also ventured into the sector. Prominent and listed real estate players are successfully gaining market share and helping the industry consolidate – a much-needed process that steadily eliminates unwholesome elements and the shenanigans for which they were known.

Some of the significant reforms in recent times and their effects:

GST: This taxation reform was conceived and implemented to enable a uniform tax code across the country. Completed real estate projects are exempted from GST, and affordable housing projects are levied with GST of only 1% to keep the momentum of demand high.

REITs: Real Estate Investment Trusts (REITs) have emerged as another option for Indian investors to add real estate to their portfolios for better diversification and risk mitigation. The REITs operational in India today are mainly in the commercial office segment. The total market cap of these REITs is estimated at INR 60,584 crores.

RERA: Perhaps the most significant post-independence reform to impact the Indian real estate sector was implementing the Real Estate Regulation Act. This Act aims to safeguard the interests of homebuyers and investors and make developers accountable for their projects. The Act makes all relevant project details, including the approvals and permissions, available at homebuyers’ fingertips and provides a mechanism for redressing complaints and grievances.

RERA establishes specific standards for the construction and development of real estate that aim to improve transparency in real estate transactions. It has given homebuyers several rights and has set forth specific laws and regulations that all developers must observe.

In the five years of its existence, 87,124 projects and 65,500 agents have been registered across the country. The regulator has successfully disposed of 97,404 complaints, paving the way for a stronger and more resilient real estate sector.

RERA is in many ways still a work-in-progress, with loopholes and lacunae getting addressed along the way. However, it is safe to say that it is the one regulatory reform that has genuinely empowered real estate end-users and investors.

THE ‘AMRIT KAAL’ WAY FORWARD

As the nation progresses rapidly and requirements evolve, real estate products, services, and assets will grow too. Many new-age real estate asset classes such as senior living and student housing are already gaining momentum. Data centres, warehousing, and industrial parks are the new buzzwords in the sector. They will gain further traction as the incumbent government focuses on its visions of Atmanirbhar Bharat and India becoming a USD 5 trillion economy.

NOT A HOME RUN YET

As these sectors and economic activities rev up, housing for the workers they employ will pose a significant challenge. The government has already laid the framework for affordable rental housing and invites private participation, but there is still a lack of clarity. ARHCs (Affordable Rental Housing Complexes) are now among the most urgent needs in post-Independence India – and the government’s Housing for All vision.

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