Monday, October 23, 2017

TESS Conveys Project Tiger Activities More Aptly Than PT

Hasn’t the time then come to more aptly call it, possibly even more unreservedly, something like Tiger Eco-System Services (TESS)?

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Image: Sourabh Bharti

This article is an exclusive extract from the author’s forthcoming memoir, Environment Through Finance Eyes.
Continuing with Corbett Tiger Reserve (CTR), for me, another highlight was seeing the efficacy of Lantana eradication. Dr. C. R. Babu who joined us the morning next, showed me around the different areas in Dhikala and in Jhirna where Lantana grass, a biological invader, had been successfully eradicated, thereby facilitating habitat improvement and growth of natural grassland, so essential for the herbivores, and kick-starting the cycle of optimal ecosystem services.
Put simply, Lantana camara, the scientific name of Lantana, native to Central and South America, has invaded and wrought havoc across global tropical/sub-tropical regions. It has disrupted ecological services, affectinkng forest ecosystems benefits, and adversely shrunk wildlife habitats. The wild-lifers, if one may say so, have naturally strayed off their habitats, spurring frequent man-wildlife conflicts. Dr. Babu, Chairman of the Ministry’s Centre of Excellence – Centre for Environmental Management of Degraded Eco-Systems (CEMDE) – and his research team, working on Lantana’s taxonomy, biology and ecology, succeeded in evolving a simple but effective management strategy to contain this eco-scourge: extirpation of Lantana through cut rootstock method; weeding out of seedlings/young plants from bird droppings under perching trees and surface run-off channels; and eco-restoration of weed-free landscapes to native grasslands/forests. This was first tried out in CTR, and with resounding success.
Dr. Babu is a byword in the field of Lantana eradication. A month later, on a short visit to the ICFRE in Dehra Dun, after the official engagements, I found a couple of hours to myself. I snuck out to the Rajaji National Park. On the way the traffic slowed us down and by the time we reached the Park, it was pretty dark. In the headlights of the vehicle it was hard to see the habitat I was interested in. Instead, I settled discussing with the officers of the Park. I asked for the Annual Plan of Operations (APO) and browsed through it. Lantana removal was among the important activities in the Park, parenthetically to be carried out through the Dr. C.R. Babu style of Lantana-eradication! I was pleasantly surprised and happy. I came back and called Dr. Babu to compliment him that his Lantana-eradication technique has already been memorialised at the Rajaji National Park!
But staying with Lantana, I must confess that although Lantana is indeed a bio-invader and tells on habitats seriously damaging the grasslands, many wildlife experts evince widely varying sentiments. Foresters in Kanha Tiger Reserve for example seem rather paternalistic about Lantana, because as the story goes, many years ago a tiger had littered amid the Lantana weed and the sanguine sentiment has held. Similar sentiment could be found with others who temper it with obtuseness that of course Lantana, a bio-invader, cannot be allowed to overrun the park, and will need to be managed!

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Read Part-I of the Tiger Series: e-Eye of the Tiger by Sudhansu Mohanty (Image: Sourabh Bharti)

The issue of leveraging solar energy is of much salience in Tiger Reserves as I soon realised while visiting other reserves. Nowhere was its need perhaps more than in the Sunderbans Tiger Reserve (STR), a vast reserve spread across the humongous delta formed by several rivers flowing into the Bay of Bengal. Inscribed a UNESCO World Heritage site in 1997, STR is estimated at about 4,200 sq, km. Of these, about 1,700sq. km are water bodies in the form of rivers, canals and creeks, varying widely from just about a few meters to several kilometres.
The STR is intersected by a complex web of tidal waterways, mudflatsand small islands that are flush with mangrove forests. The interconnected network of waterways makes the mangrove forests – habitat of the eponymous Royal Bengal Tigers – mostly accessible by boats. They serve as crucial bio-protectors against floods and cyclones for inhabitants living in and around this substantial deltaic plateau. Not to forget that the national park sprawled out in this unique ecosystem acts both as lung and kidney in flushing out effluents and pollutants as the rivers drain out into the Bay. 
Given the geography and topography of STR, the region seemed hostile in performing the arduous task of tiger protection. The four protection camps I visited – Kendo, Haldibari, Neti-Dhupani, and Dobanki – were way far out in the Bay where Forest Guards and Watchers live and work. Kendo is the last protection camp closest to the Bay of Bengal, about 90 kilometres (two hours by speedboat) away from Sajnekhali, which acts as the gateway to the Sunderbans National Park. Fairly inaccessible and with no population around, the protection camp had just about enough solar PV panels to illuminate the building with a few lights, but not enough to power a few fans.
The place in the midst of water is rather humid except during the winter months; the rest of the year the weather challenges them to their bones. The need to improve the living condition of the people manning these outposts was paramount. This is where solar power can help in a big way. I was pleasantly surprised that despite the inhospitable and challenging conditions, these people live and work day-in and day-out – their spirit was upbeat and their morale high. The Field Director, Soumitra Dasgupta, an Indian Forest Service officer of 1989 batch, [presently IG (Wildlife) in the Ministry of Environment, Forest and Climate Change – just the perfect fit to revamp the Wildlife Division], ever gung-ho, led by example and helped buoy their spirit – his passion and good cheer rubbing off on his officers and staff, and spurring them on. 
I came away with the feeling that since these are non-family stations, to mitigate the problems of these personnel, we could consider granting them ration (as done for the police, the armed forces and the Special Tiger Protection Force) and separation/hardship allowances from the project funds. To boost the morale of these personnel, it would help if the possibility of even getting their families over to these places for short durations could be explored. Such inexpensive appliances like Mitti-cool, a refrigerator made of clay, that needs no electricity, could as well be considered to provide cool drinking water to people working in adverse and hostile environment. I am glad that we worked out the details and sanctioned ration allowance within a couple of months.

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Image: Sourabh Bharti

There was need, too, for a few more Floating Patrolling Camps in this waterscape, where water seemed the defining image in this vast landscape. With rain falling in buckets a good 6-7 months of the year, the difficulties of patrolling the national park seemed a big challenge. Quick and ready access to this remote and inaccessible topography, especially during the monsoon months, posed challenge to patrolling. We discussed this issue at length, almost at every patrol station we visited. Thinking aloud, I even suggested providing financial support for chopper service for monitoring, surveillance, and rescue operations on contractual basis from the PT funds, as and when the need arose. 
The Kaziranga National Park (KNP) is yet another unique national park formed by a river – Brahmaputra -when it spills over its banks during monsoon and inundates the park. The receding river water leaves behind in its trail umpteen mudflats. KNP is home to a mega-biodiversity that includes the putative one-horned rhinos and tigers. Unfortunately, the rhinos are poached upon with the intent to harvest their horns that command astronomical prices in the international black market, purportedly for its aphrodisiac property. They are poached on all sides of the park. E-surveillance, the kind started in the Corbett Tiger Reserve to keep vigil 24×7, seems the only way forward here.
Of all the tiger reserves and national parks that I visited, Kaziranga is non-pareil. Standing on a watch tower, I surveyed hundreds upon hundreds of wild animals – rhinos, swamp deers, Hoolock Gibbons, elephants, pangolins, and a score of others I can’t put a name to – on the flat mudflats, as though served on a platter by an unstinting host! It was the closest to any wildlife African safari that any tiger reserve or national park in India could offer and was a feast for the eyes. Only the tiger was missing! And that’s what makes it so elusive and the reason why human beings hanker after it.
My visits to Kaziranga and Sundarbans, preceded by my earlier visit to Corbett, and coupled with my interface with sundry files that came to me in steady, timely schedule and the numerous discussions with the tiger-men helped me appreciate that tiger conservation encompassed a host of benefits not ordinarily known to the common man: clean air, clean water, more fish catch with higher fertility and productivity, employment and poverty alleviation to local population, and forest protection; also, that tiger conservation subsumes conservation of other flagship species like rhinoceros, elephants, and barasingha.
As I wound down my visit to Kaziranga and on the drive back to Guwahati, still rolling and processing my newly-acquired empirical experiences and the teeny-weeny bit I knew about Nature’s requite instinct, for no particular reason that I could figure out, I felt a faint disembodied thought of inadequacy colonising my mind. Hasn’t something inscrutable gone missing somewhere? I tried hard, but couldn’t. And then unbidden, quite serendipitously, it pitter-pattered in my mind; it wasn’t the inscrutability of the wild, but something more earthy and mundane: Ain’t calling our Centrally-Sponsored Scheme (CSS) by the eponymous rubric, Project Tiger, rather inadequate, diminishing the full import of the range of activities done under PT? Was that it? I asked myself. Yes, indeed. Hasn’t the time then come to more aptly call it, possibly even more unreservedly, something like Tiger Eco-System Services (TESS) that faithfully and fulsomely captures the range of activities done under the PT scheme to keep the forest eco-systems alive and uptick? I couldn’t help mutter my thoughts, and also said it in my tour note. I left it to the experts in Project Tiger to reflect over the suggestion.
[… to be continued on Sunday, Oct 29th]
(Reproduced from the Indus Dictum)

Sunday, October 15, 2017

e-Eye Of The Tiger

E-surveillance was an innovative idea where 10 watch towers kept a 24/7 vigil over the area within their range through thermal and infra-red cameras.

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Image: Sourabh Bharti

This article is an exclusive extract from the author’s forthcoming memoir, Environment Through Finance Eyes.

Amid the farrago of lacklustre activities that informed the Ministry of Environment, Forests and Climate Change’s various divisions, with most things trundling along without a goal, there were a few bright spots that lifted my periodic blues. Among the brightest was the Project Tiger under the National Tiger Conservation Authority (NTCA), which continued quietly to do the good work it had been tasked to do the past many years. It was led by Rajesh Gopal, the Additional Director General and the Member Secretary of NTCA, an inspirational leader ably supported by a band of dedicated officers like Satya Prakash Yadav, DIG, and Himmat Singh Negi, IG, at the NTCA headquarters, apart from a string of passionate wildlife forest officers in the field spread across the country in the 50 Tiger Reserves.
Not many people in the Ministry understood what Project Tiger was doing. “Why do we place such an enormous amount of 180-odd crore rupees to care for the tigers?” one senior officer once asked me, out of wide-eyed curiosity and to improve his knowledge on the rationale of governmental spends on plan schemes. What he meant was why must we waste such huge sums feeding tigers – who at times also turn into man-eaters! – when possibly the same money could be better spent on other schemes for the impoverished.
To be fair, he didn’t say exactly that. But I got the drift of his question. I explained to him whatever little I knew. That the tiger is an umbrella species, and as top carnivores they play a crucial role in ordering and preserving landscapes in pristine form in its natural pecking order – thereby maintaining biodiversity. Once you care for the tiger population, other species, including co-predators and preys like smaller carnivores and the varying conglomerate of herbivores in the hierarchy, are taken care of, even down to the habitat and grasslands that herbivores feed off. Tigers in the wild sit atop the food chain, ensuring a bio-eco-balance that sets off a natural cascade among other carnivores (such as leopards), herbivores (like deer, antelopes, wild buffalo) and omnivores (like wild boars), and conserve healthy grassland; it is an evocative symbol of forest protection. Since tigers live in the deep wild, a healthy population of this territorial animal also ensures healthy forests that act as carbon sinks for all living beings on earth.
My words, telescoping vast landscapes with their natural offerings and efficacy on fauna and flora and the planet’s ecosystem to a few bald sentences, would naturally have sounded rather confusing to his disbelieving ears. He veered our conversation off to a different tangent. I wasn’t surprised.

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Image: Sourabh Bharti

The first time I ventured out to explore and understand Project Tiger in October 2013, I chose the Corbett Tiger Reserve (CTR) in Uttarakhand. It was close to Delhi and I could see the variety it offered to understand what Dr. C. R. Babu, Chairman of the Centre for Environmental Management of Degraded Eco-Systems – one of the Ministry’s Centres of Excellence – had earlier retailed to me: his success story in eradicating Lantana grass in Corbett. Satya Prakash Yadav (‘SP’ to me; ‘SPY’ to his batchmates!) accompanied me.
The Corbett Reserve is spread across 1,300 sq. km with the Ramganga River and two of its tributaries – Sonanadi and Pallain – flowing through it. Arriving at Kalagarh, we took the boat to reach Dhikala. During the monsoon, with this area pounded by incessant rain, Dhikala is completely cut off; the only way to get there from Kalagarh is the waterway. It highlighted the perils for the forest staff during the rainy season – these foot soldiers whose commitment and passion makes the difference in the cause of tiger conservation. Little do babus sitting in air conditioned chambers at New Delhi ever appreciate the efforts put in by these unsung frontline personnel when they seek a visit to the tiger reserves for a couple days to de-stress their minds.
A few things stand out in my memory from this visit. One was visiting the E-Surveillance Control Room at Kalagarh. E-surveillance was an innovative idea where 10 watch towers kept a 24/7 vigil over the area within their range through thermal and infra-red cameras. The pilot project, in its first year, seemed to be bearing fruits from the point of view of surveillance and anti-poaching activities. The Corbett Reserve was the designated field site for this pilot project. The southern boundary of the reserve – between Kalagarh and Dhela– abutting agricultural fields and human habitations, was highly porous. Unauthorised human ingress into these areas, as also of elephants and tigers entering human habitations and farmlands, often led to conflicts.
Once the broad parameters of the project were agreed upon, the Binomial team set upon designing the hardware and software. Detailed field surveys and discussions led to further refinements in system requirements and design. Finally, in 2012, e-Eye was born. The system comprised of a series of short range infra-red night vision and long range thermal camera stations, mounted on high towers. The cameras were connected to a central Control Room using WiMAX and remotely operated by authorised personnel. They had powerful zoom capabilities, panning and tilting and working even in adverse weather conditions. Power requirements were met with solar panels deployed at each tower location.

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Image: Sourabh Bharti

When the system finally went online, Corbett managers were pleasantly surprised with the outcome. The network of cameras covered an area of about 300 sq. km, tracking movements of any object over 20 kg body weight, and thus capable of detecting human movements as well as that of wild animals. Any kind of suspicious movement generated alerts, which were forwarded to field stations in the Reserve for appropriate action.
E-Eye also generated some fantastic images of various wild animals doing their own things but, more importantly, helped generate several alerts about human activity. Each of these alerts was responded to at the field level by Rapid Response Teams and periodically verified by senior officials, making sure that the integrity of such information was maintained. This was a direct deterrent on criminal activity. People illegally entering the forests could expect a team of field staff to swoop in on them shortly; it served as a huge psychological barrier for criminals. They were jittery of being tracked down and dealt with. This also boosted the confidence of the field staff. And, soon enough, a criminal with a proven track record in the Reserve area tried to damage one of the camera towers! He was caught on camera vandalising, quickly arrested and dealt with.
With an estimated initial cost of around Rs 3.5 crore, though, E-Eye didn’t come cheap. The hardware also needed periodic maintenance and upgrading, even the software required regular upgrades. This involved additional costs. The results though were very satisfactory, encouraging the NTCA to introduce it in Kaziranga Tiger Reserve where rhino poaching is a daily challenge. E-Eye is an excellent example of how scientific tools can be leveraged to strengthen field level protection. True, it is no substitute for traditional foot patrolling but surely can complement it. The fact that cameras keep a 24/7 vigil, regardless of weather conditions, helped monitor larger areas and deploy scarce human resource more strategically. Further, the system had huge potential for exploitation given the high volume of data it generated. It could monitor potential human-wildlife conflict, as also when elephants and tigers moved outside the reserve, alerting villagers of such movements, and with the Rapid Response teams averting any untoward incidents. E-Eye has opened up possibilities; with its unwavering eye, tigers, elephants, rhinos and other endangered animals can now breathe easy and have a run of their habitat!
(Reproduced from the Indus Dictum, where it was first published)

Tuesday, October 3, 2017

Not Republic Of Fifth Column But Culture Of Transparency

"Will leveraging contemporary technology to bring citizens face to face with governance help?"
By Sudhansu Mohanty

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This article is the final installment in a 3-part series about Ethics in Public Governance by the author, Sudhansu Mohanty.

Pause and run the proposed PPP model through a patient’s/caregiver’s lens. The usual gripe against private hospitals holds: all-round over-invoicing, billowing especially during ICU stays when patients are out-of-bounds for caregivers; blood drawn many times over at the same time, expensive medicines administered on the same day/time that impugns maximum prescribed doses; generic drug not administered even when available and branded ones used instead; wanton diagnostic tests, and a plethora of other glaring incongruence that breaches every known medical ethics and moral vocabulary. Hospitals claiming to touch people’s lives indulge in every possible shenanigan and skullduggery to maximise profit. The list is endless. Healthcare today is a smart industry and health-tourism is the buzzword. “Practice two things in your dealings with disease: either help or do not harm the patient” – a part of the Hippocratic Oath – has evanesced, long forgotten. I feel queasy.
Cut to the chase for poor patients. “There will be no reserved beds or no quota of beds for free services,” says the Niti Aayog. “The State Government can refer as many patients as it can up to the capacity available in the Project facility.” How on earth is that going to happen without funds in the government kitty? In effect, the patients fall back on the PHC – now rendered more decrepit before the other PPP-half – for lesser mortals. Two treatment standards, we’re back to square one – India and Bharat!
Interestingly, on the issue of coronary stents brought out in Part-II of this seriesyesterday, with companies manufacturing coronary stents in India reportedly creating an artificial shortage in market/hospitals in the wake of price capping in February 2017, the Department of Pharmaceuticals (DoP) has, in its order of September 27, 2017, invoked Section 3 (i) of DPCO, 2013 that empowers the Government to “achieve adequate availability and to regulate the distribution of drugs, in case of emergency or in circumstances of urgency or in case of non-commercial use in public interest, direct any manufacturer of any active pharmaceutical ingredient or bulk drug or formulation to increase the production and to sell such active pharmaceutical ingredient or bulk drug to such other manufacturer(s) of formulations and to direct formulators to sell the formulations to institutions, hospitals or any agency as the case may be.”
The DoP has directed the companies manufacturing coronary stents in India to:
  • Maintain production/import/supply of the coronary stents;
  • Submit a weekly report on coronary stents produced and distributed. They will also submit a weekly production plan for the next week to NPPA and DCGI.
The DoP has also empowered NPPA and DCGI to extend these directions to any other producers of coronary stents in India during this three-month period. This order will be valid for three months (except for Absorb Classic BVS and Absorb GT I BVS stents of Abbott Healthcare) and NPPA and DCGI will recommend withdrawal or extension as the case may be, two weeks before the expiry of the period.


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Related: Openness In Judicial And Corporate Governance by Sudhansu Mohanty


Abbott’s (one of the global behemoths in healthcare) Absorb and Absorb Gt1 Bioresorbable Vascular Scaffold (BVS) is another dodgy saga with safety concerns and issues of clinical trial red-flagged by drug regulators across the world, among them the US, EU, Denmark, Japan and Australia, as widely reported in the media. Adding to this in India was their reluctance to comply with NPPA’s price cap order. To quote a Times of India report of early-September 2017: “A few cardiologists in India, closely identified with promoting these stents, had opposed price control of bioresorbable stents, which sold at about Rs 1.9 lakh before the Rs 31,000 cap imposed by the drug pricing authority. In the US, the price was about $1,500 or about Rs 1 lakh and in Europe it was even lower at about 900 Euros. The use of bioresorbable stents in India was more than five times as high as in developed countries, but there has been no investigation into the safety of patients implanted with these devices.”
Two other different, but related, issues suck. Recall the substantial increase in the Mediclaim premium this year over last year’s rate. So, either the citizen pays directly or the government pays courtesy citizen’s taxes. Add the draft pharmaceutical policy by the department of pharmaceuticals now in the works, with focus not on controllingbut on regulating drug prices – quite in line with the Aayog’s proposal to delink the Drug Price Control Order from the National List of Essential Medicines – and you’ll wonder if World Bank’s unseen hand isn’t on an overdrive. Sylvia Karpagam in a recent piece in The Wire has shown the abysmal failure of the PPP model in Rajiv Gandhi Super-Speciality Hospital for tertiary care in Karnataka’s Raichur district and theKaruna Trust for 80 primary healthcare centres across eight States. Intuitively, our Indian healthcare and compassion – a baffling mix of the sublime, the profane and the gratuitous (avarice) – in times of madcap upward material mobility in a consumerist era trumps doctors’ nobility towards patients. Hippocratic Oath is out the window!
My much-harried friend and batch-mate, a Chief District Medical Officer and a subject specialist, works round-the-clock and earns salary that is less than my government pension. Little wonder the rampant absenteeism of government doctors lies in poor remuneration and the urge to indulge in private practice at sufferance of their job responsibility. Couple this with bureaucratic supremacist spirit – a colonial legacy that epitomises our feudal mindset – which belittles their human dignity, and you’ll appreciate their callousness.
The way to go is to incentivise them “commensurate with existing market conditions” (Aayog’s words, not mine!) and create facilities that private entities would with PPP-pinned funds, rid the chalta hai attitude, invoke an arm’s length system to transparently and measurably monitor, and hold them accountable, and watch the changes. I see no reason why, in the same district locale, they’ll bite WB-Aayog’s PPP bait, not the socially-inclined and socially-respectable governments. With doctor’s commissions for diagnostic tests/procedures de-incentivised, the patients will likely be spared the fleecing that many corporate hospitals indulge in today. And compassion will likely coalesce with healthcare; doctors will heal patients – those God’s children on a worldly visit!
This is yet far from complete. For, unsurprisingly, we have lately added another, a fifth estate to our democratic construct not limited to the putative fifth column of immorality and post-truth – beyond the bought-out press, paid news, fake news, advertorial news – that Gauri Lankesh’s death has driven home: ELIMINATION! No need for hyperventilation in entrepôts of raucous cacophony in select TV studios; extirpate the root, so that the voices of such humans are shushed for good. And all this in times of smart histrionics, of bluff and bluster spoken in high octaves! Goebbels sure will be turning and blanching in his grave for his lack of innate smarts! Are we now living in a new Republic of the Fifth Column! Pity the protagonists do not realise ideas are bullet-proof, amenable to traversing time, space and distance – there for keeps!


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Related: Propriety Is Key To Citizen’s Quality Of Life by Sudhansu Mohanty


Academic plagiarism has assumed menacing proportions. The cases are galore – with the list bearing names of many eminences conferred with Padma awards and more. Modesty forbids me from spelling out the names and their tales. But I must state what I, as a member of the UGC-appointed Committee, recently witnessed firsthand: how plagiarism by the former VC of Pondicherry University (subsequently dismissed) has wrought irreparable damage on a university. The malaise is all over. One wonders how much with growing awareness and vigil, plagiarism detection tools like Turnitin and Copyscapes et al, can fix this malaise.
I am inclined to believe (now more or less convinced) that perhaps the deterrence to such potential recklessness lies in tightening governance’s value system. Maybe, an arm’s-length system and an Ombudsman to oversee operations coupled with zero-tolerance to dishonesty and corruption are necessary to bring about ethics in public governance. Yet, given extant obfuscation and opacity, will it be enough to stymie unholy impulses? Will leveraging contemporary technology to bring citizens face to face with governance help? Will such an interface, not ex-ante but ex-post ‘oversight’ governance, aid stakeholders to see for themselves the processes and rationale of decision-making that is already available under Section 4 of the RTI Act, 2005, as proactive disclosure. Never mind the Delhi High Court’s ruling keeping the Attorney General out of the RTI’s purview and the Supreme Court remaining implacably opposed to render itself transparent on personal details of public interest, as evidenced in smothering CIC’s order to part with information under the RTI Act.
Is transparency, then, the answer? Will it help to offer on a platter official document in public domain post-decisions for citizen ombudsman? Will the fear of exposé – disciplinary action and social disapproval for “wrongful acts” – deter unsavory impulses? Possibly, yes; no one likes to be proceeded against; we live on self-respect and dignity amid a 24/7 media. We’ve the technology and we’ve the besetting issue of dishonesty that refuses to die. Sunlight, it seems, is the best and maybe the onlydisinfectant for public acts.
At the cost of sounding presumptuous, I would say en passant that when I took over as the Controller General of Defence Accounts to helm the Department looking after the financial management and internal audit of the entire Government of India defense budget outlay of approx Rs 3.4 lakh crore, I invoked transparency. All relevant official documents, all pesky issues of officers’ placement and spends from taxpayers’ money were uploaded. It was bloodless; but it had a magical effect. Disaffection with placements was eliminated, with the networkers exposed and running for cover; unnecessary, wasteful expenditures were arrested, with everyone privy to ways of the corrupt and the nepotistic; and with each checkmating the other. Alas, once I moved over to the Ministry of Defence, transparency was given a royal heave-ho and opacity granted its pride of honour!
Leveraging technology to invoke openness and transparency is an option – a culture of transparency seems the viable answer to curb corruption in public life. But it is nuanced, multilayered. It’ll need tempering through accountability, an effective check and balance mechanism, an arm’s length system not open to tweaking by any public functionary, not to forget public discussions to rework and re-engineer the entire architecture of governance processes to introduce the moral vocabulary sorely missing in public governance. Be you ever so high, the law is above you, as the 17th century English church man and historian Thomas Fuller would say. It’ll take time but a beginning must be made. Political will is the key. But will that be forthcoming? And I wonder how relevant our experiential existential formula is today: Experience = CL (Capacity to Learn) x DL (Desire to Learn) x No. of years of service!
(Reproduced from Indus Dictum)

Sunday, October 1, 2017

Openness In Judicial And Corporate Governance

"Eminent Indian lawyers view that video recording of the Supreme Court proceedings will help the common man to view justice delivered live, giving full expression to their fundamental right."
By Sudhansu Mohanty

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[… continued from Part-I]
Developments in the last few days though have been very disturbing. Justice Jayant Patel, the senior-most puisne judge of the Karnataka High Court, who ordered CBI probe in the Ishrat Jahan case, has put in his papers in the wake of his transfer to the Allahabad High Court, ostensibly for overlooking him for appointment as Chief Justice of a High Court despite his seniority. Justice Jayant Patel has done the most honorable thing by putting in his papers. A High Court judge for close to 16 years – appointed in December 2001 – the treatment meted out to him is unfortunate. After having acted as the officiating Chief Justice of the Gujarat High Court for 7 months from August 2015 to February 2016, it would have been appropriate to appoint him as a Chief Justice of a High Court. Instead, first he was transferred to the Karnataka High Court in February 2016; and now after being a judge for 17 months in Karnataka High Court and just 10 months away from retirement, he was transferred to the Allahabad High Court. His is quite similar to 1973 and 1977 cases of supersession of Supreme Court judges in the wake of judgments in Keshavananda Bharati (1973) and ADM Jabalpur(1976) cases respectively – the only difference being that the Ishrat Jahan case is not as recent as the earlier two cases vis-à-vis the supersession dates. But memory is long and it pays not to forget! This shall doubtless go down as yet another sad day for the Indian judiciary.
But the appointment procedures were different in the 1970s, when it was entirely in the hands of the executive. Things changed with the introduction of the collegium system. The apex court asserted its primacy in the NJAC case. But to what effect? This one unquestionably is a complete failure of the Supreme Court collegium; it has failed to assert its independence by completely surrendering to the rampaging executive! Can one read any meaning to this? He had directed CBI investigation in the Ishrat Jahan case, and had also monitored it for 6 months and is there anything one can infer? This is more a failure of the higher judiciary (compared to earlier occasions in the 1970s) than as a triumph of the executive. The judiciary buckled, thereby ensuring executive’s supremacy! Rather ominous for the nation and the rule of law.
It is just as well that Dushyant Dave, the respected Senior Advocate in the Supreme Court has come out strongly against the failure of the collegium in the following words:
“Justice Patel’s resignation is a reflection on the vindictiveness of PM Modi and BJP President Amit Shah. It is a sad reflection on the so-called independence of the Collegium which failed him and the judiciary by compromising with the Executive and agreeing to bypass him with juniors being elevated. The conduct of Collegium shows that their words in NJAC judgment are totally hollow.
Justice Patel has come out like a shining star while those who participated in his ouster have come out as small men. I salute Patel J. and extend my warmest wishes for happiness that he deserves which he can only find according to him, outside judiciary. Hope this raises a real debate on functioning of collegium and the injustices perpetrated by it.”
More than 200 lawyers of the Karnataka High Court have signed an open letter to the Chief Justice of India against the transfer and supersession of Justice Patel. They have also decided to strike work on October 4, 2017. Even the Gujarat High Court Advocates Association has passed a resolution to file a petition in Supreme Court challenging the transfer of Justice Patel from the Karnataka High Court to the Allahabad High Court. But what’s going to come off it? Your guess is as good as mine.
In the US, the President nominates and the Senate recommends after elaborate scrutiny by the Senate Judiciary Committee composed of lawmakers from both parties. It’ll be worth emulating the US practice with appropriate changes, which will likely inject transparency in higher judicial appointment. The same method could as well be followed for other constitutional and statutory offices, like CIC/ICs, C&AG, CEC/ECs etc.

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Related: Propriety Is Key To Citizen’s Quality Of Life by Sudhansu Mohanty

Move over to another aspect: Live Streaming of Court proceedings. Strange as it may sound, it is the US Supreme Court Justices who have opposed cameras in the courtrooms. Eminent Indian lawyers though view that video recording of the Supreme Court proceedings will help the common man to view justice delivered live, giving full expression to their fundamental right as guaranteed under Article 19(1)(a). Justice delivered in real-time from the judges’ mouth and not from Twitter! We are a mature democracy. Regardless of whichever part of the “globalville” we live in today, live-streaming will educate an information-hungry nation on issues that affect them intimately. It would mean doorstep delivery of justice, apart from being user-friendly, as we witness history being made in front of our eyes. It would also promote transparency and accountability in the administration of justice and inspire confidence in the judiciary. The cliché of “justice must not only be done but also seen to be done” will ring truer.
Several eminent lawyers opine that “other than criminal cases and family law where the privacy of an accused is compromised or a family dispute is required to be protected by privacy”, all other cases of constitutional importance could be live-streamed. Imagine viewing live the hearings in the Triple Talaq and the Right to Privacy cases. All the more reason since the Lok Sabha and the Rajya Sabha proceedings are streamed live. Recall the much-loved, much-WhatsApped Caught in Providence Chief Judge Frank Caprio, in An Honest Boy: I love this Judge. Imagine the good that tiny clip can do to society. Much like tele-medicine benefiting patients in far-off places, live-streaming of court proceedings will, too.
Look around the corporate world and take one recent issue pertaining to reduction of price of stent in private hospitals. In February 2017, the National Pharmaceutical Pricing Authority (NPPA) had capped the price of bare metal stents at Rs 7,260 per piece, and of drug-eluting and biodegradable stents at Rs 29,600 each. It was slightly increased to Rs 7,400 and Rs 30,180 respectively in March, after adjusting with the latest wholesale price index (WPI). Seven months after the government capped the price of coronary stents, leading to a cut in their price by about Rs 1 lakh, the hospitals are yet to reduce the package cost of an angioplasty – a procedure in which a stent is used to open a narrowed or blocked artery to improve blood flow. Insurance companies say that the expenditure for the procedure hasn’t seen a corresponding drop. Though the overall cost of an angioplasty is said to be cut by Rs 30,000-40,000, in reality the cutback in stent costs has been offset by an increase in the cost of other components for the procedure. How ethical is that? Doubtless, the hospitals need to be more transparent. Hospitals should make a profit, not a king’s ransom. Fair pricing, transparency is the need of the day.
Another correlated issue sucks: Niti Aayog’s recent Three Year Action Agenda, 2017-18 to 2019-20 on Access to Medicines. To say the least, it is disturbing. “A balanced approach towards regulation is needed for achieving the twin objectives of access to effective medicines and a strong pharmaceutical industry,” so says the Agenda document. “There is a trade-off between lower prices on the one hand and quality medicine and discovery of breakthrough drugs on the other. It is therefore recommended that the Drug Price Control Order may be delinked from the National List of Essential Medicines.”
The Prime Minister and the Health Minister speak in one voice to reduce cost of medicines and plugging for generic drugs as the Niti Aayog speaks in another nuanced voice! Essential medicines, says the WHO are “those drugs that satisfy the healthcare needs of the majority of the population; they should therefore be available at all times in adequate amounts and in appropriate dosage forms, at a price the community can afford”. While the National List of Essential Medicines (NLEM) is a list of essential medicines in India prepared by the Ministry of Health & Family Welfare, the Drug Price Control Orders (DPCO) are issued by the Government under section 3 of the Essential Commodities Act, 1955, to enable the Government to put a ceiling price for such essential life saving medicines and ensure that these medicines are available at a reasonable price to the general public.

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Related: Oblong Arm of the Law by Sudhansu Mohanty

That said, it might sound paradoxical to say that while generic drugs should be the order of the day, in today’s India few generic drugs pass the quality test. The 1980s and 1990s was a time of the generic drug “robber barons” thanks to poor laws and populist aspirations of the then governments bent on low drug prices sans quality of drugs. Little wonder India, though placed 4th in global generic drug market, has earned the ignominy of manufacturing 75 percent of world’s counterfeit generic drugs, soaring high above Egypt with 7 percent and China with 6 percent.
To be fair, the government indeed has, in April 2017, made changes to the Drug and Cosmetics Act of 1940, making it mandatory for genetic drug manufacturers to submit Bioequivalence (BE)/Bioavailability (BA) study reports for approval as against the earlier practice of merely submitting the BE/BA reports for genetics of patented drugs in the first 4 years of introduction. Nothing more is asked of them, thus making it a field day for genetic drugs to flood the market. Once in an indigo moon the finished drug was submitted for testing at the Central Drugs Standard Control Organization (CDSCO). Little wonder barely that 0.01% of the genetic drugs in the Indian market are tested for its potency and efficacy. So the amendment to the Drugs and Cosmetics Act (1940) is a welcome development. But the issue now is one of regulation and implementation. Anyone who has worked in the government knows its innards. The system is so apathetic and opaque that a complaint of poor/inadequate potency will keep meandering about in the corridors of government Bhavans; the callousness of our Brother Babus is phenomenal!
There can be no two views that the need is to increase the number of test labs all over the country in government medical colleges, increase the number of pharmacists/pharmacologists, put a strict testing process in place, and go transparent with test results by uploading them in public domain. Any complaint from a consumer must be attended to with a sense of immediacy and the same too put out on the website. But will the government bite such “dangerous” transparency that will jeopardise big pharma companies’ interest? I doubt if this will happen. To expect the government to seed a billion Lokpals to oversee is a pipedream! We are then back to square one despite the recent amendment to the Drug and Cosmetics Act.
Large pharmaceutical companies invest huge money in developing a new drug; the amount could be more than US$ 2-3 billion. Naturally they will like to get return on investment – through patent and royalty. India too seeks big bang R&D in drugs, and Indian firms are interested. Perhaps that explains why the government is speaking with a forked tongue: while the PM and his Ministers speak about mandating generics, the Niti Aayog suggests “a trade-off”!
The Niti Aayog’s recent proposal to introduce the Private-Public Partnership model in select district hospitals only fortifies this suspicion. Some commentators view it “as ill-designed, driven by ideology more than welfare and a strange hybrid that has no precedent anywhere in the world, calling it strategic, bizarre or hare-brained”. The Aayog justifies space to private hospitals in “select district hospitals to private players through a transparent, competitive PPP framework for the treatment of non-communicable diseases (NCDs) by harping on failings of our publicly provided health services”, pointing at Gorakhpur tragedy. Rampant absenteeism of doctors – varying from 28 percent to 68 percent across different states – the Aayog cites copiously to show that government doctors contribute less effort vis-à-vis their private counterparts and they prefer to pontificate: Long-term measures to restructure the MCI are on anvil (Pray, who will? Remember Ketan Desai!); and observe that District hospitals will provide basic services for diagnosis and treatment of NCDs “at affordable rates or free of cost for those patients for whom the government chooses to cover” through insurance or budgetary grants. The public exchequer will pick up the insurance and reimbursement tab. How generous!
[…to be continued]
(Reproduced from the Indus Dictum)