Tightening Governance’s Value System

Citizen as Ombudsman

As a former bureaucrat, who, for years was a part of India’s policy making and overseeing implementation, I sensed, as did many others, serious governance deficit in Indian public policy. Lack of transparency, age-old Indian tradition of promoting family/clan/sub-national loyalty, culture of materialism that’s gotten more pronounced with economic liberalization in a globalized world, and the urge to get-rich-fast, have distorted priorities.

Ethics, in the broadest sense, is at the heart of these problems. Looking at the psychology and compulsions of the early man, it would seem that the raison d'être of the social compact has been defeated; in the schematic social contract versus individualist aspirations construct, individual aspirations have triumphed. Human aspirations and ingenuity have, from time to time, trumped regulations/contracts/rules; regulations have failed to smother this primordial human urge to self-aggrandize. Are there lessons to learn here? I still can’t get over the shock when, in my bureaucratic diapers in 1982, I saw a file how white ants had eaten away road rollers! Same too where cyclones had been “manufactured” in the trans-Himalayan belt to score off inventories. It seemed something was egregiously and unacceptably wrong.

Corruption though is not mere financial. As damaging as financial malfeasance is intellectual dishonesty, manifested in policy-making kept under wraps in official records. While financial misgivings are palpable, intellectual dishonesty – covert and subterranean – hemorrhages soundlessly till fixed; it skews and wrinkles public morality.  The damage is incalculable. The clutch of scams and mega-scams that struck India circa 2008-12 extinguished citizen’s monk-like patience. Apart from the financial loss of taxpayers’ money, it showed how corruption had squeezed money out of the system creating a skewed developmental agenda.

Propriety – financial and intellectual – is a key determinant of citizen’s quality of life. It encompasses legislation, governance, healthcare, education, commerce, business, justice system etc. Yet, the architecture of rule of law designed to hold the order, often fails to squelch wrong human impulses. Human nature – possessive, hedonistic, self-interested – trumped regulations. With the dishonest networked across professions, the countervailing institutions have often failed, swaying to interest groups’ agenda. The people’s movement against corruption in 2011 for creation of Lokpal turned out a false dawn. Was it because the four pillars of democracy – executive, legislature, judiciary, media – supposed to checkmate one another didn’t wish to disturb the applecart? How does such mindset affect governance?

Even 26 years post-liberalization, the Indian rural population still looks up to government intervention for poverty alleviation. Governments hold the fund and welfare entities for the poor. For a feudal society with traditional bespoke mindset, state patronage remains the Holy Grail for majority aspirations. Nor are most men in the four organs of governance immune to quid pro qua: bought-out press and paid news; post-retirement sinecures for most who have been in government employ; rewards and gratifications, are just a few examples. Socio-financial iniquity has burgeoned; unrest – born off a growing educated young middle class finding it hard to navigate opaque archaic government procedures and a corrupt officialdom in day to day living – leveraging technology and social media bristles asking moral questions: Does it not diminish human beings? Does it not impugn basic human dignity?

The malaise is all-pervasive. In a way it’s natural, for regardless of profession, men are cut from the same societal cloth with symptoms of the same ecosystem. Look at the role of legislature and judiciary: Haven’t they been hubristic and for the highbrow as is often alleged, granting preferential treatment to the “well-networked” and the “connected”? How’s the Supreme Court played its part in dispensing justice? Have judges transcended the society’s feudal mindset? A host of recent cases come to mind: highway liquor ban, contempt of a former Supreme Court judge, national anthem case, judges seeking post-retirement employ, the delayed hearing in the Aadhaar case (still on-going) just to cite a few. Restraint, rather self-restraint, is the authentic signifier of a mature institution. Absence of restraint even in the face of palpable injustice or manifest illegalities can only corrode public confidence. The judiciary will do well to realize this. The rippling effect it creates in terms of revenue loss or employment as in the highway liquor ban case is simply beyond their ken to evaluate. The fact is it is not their remit; hubris of power to grant complete justice isn’t in order.

Else, the very fabric of separate of power, one of the basic tenets of the Constitution, will be cast aside. Coming from the protector of the Constitution, it amounts to the fence eating the crop! “The judge’s role”, as one columnist wrote, “in any version of constitutional democracy, is to be a gatekeeper of constitutional boundaries, an ever-vigilant defender of rights, not to author more restrictions on civil liberties... If this is the role judges seek for themselves, then they must make themselves accountable under judicial review. The immunity from judicial review under Article 13 is to preserve the interpretive authority of the court, given the inevitability of disagreement emerging over its interpretations, not to shield episodes of absurd judicial law-making.” Have they then been the Caesar’s wife? How does the judiciary morally explain its dueling with the executive on appointment of judges through an opaque “collegiate system” when the Constitution consciously divvies responsibility between the two to avoid monopoly of either and grant fairness to selection? How fair is it? Does it pass muster of disinterested observers and provide oxygen to public faith?

In an interesting piece in The New Yorker, Evan Osnos refers to an article “on the intersection of health and politics” published in Brain, the British medical journal in February, 2009, titled Hubris Syndrome: An Acquired Personality Disorder? One of the authors was David Owen, former British Foreign Secretary, also a physician-neuroscientist where the authors propose creation of a psychiatric disorder for leaders who exhibited “impetuosity, a refusal to listen to or take advice and a particular form of incompetence when impulsivity, recklessness and frequent inattention to detail predominate.”  This seems to hold good across professions for people in high perches.

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 are necessary. 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 interface, an ex post ‘oversight’ governance, aid stakeholders see for themselves – proactive disclosure is already available under Section 4 of the RTI Act 2005, never mind the Delhi High Court’s ruling keeping the Attorney General out of the RTI’s purview – the processes and rationale of decision-making? More, especially when the Supreme Court is 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, 2005. 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 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 only disinfectant 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 of the entire Government of India defense budget outlay of approx US$ 50 Billion, 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 expenditure 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 honor!

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’s 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. It will take time but a beginning must be made. Political will is the key. 

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Drugging India to Pay More on Healthcare

The recent Niti Aayog’s Three Year Action Agenda, 2017-18 to 2019-20 on Access to Medicines (pages 144-145) is rather 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.”

Is this is one among the many instances of the government’s double-and-multi-speak? The Prime Minister and his Minister of Health and Family Welfare speaking in one voice and the Niti Aayog in another! Was the PM trigger-happy in his muscular tweets (as given below), thrice inside 5 minutes, conveying his concern for the poor, the wretched of the earth? Or was he being plain naïve and didn’t (and still doesn’t) know the issues behind it?

The poor must have access to quality and affordable healthcare: PM @narendramodi in Surat
10:45 AM – 17 Apr 2017

After assuming office, mechanisms were put to bring down prices of medicines even if that meant pharma companies are unhappy with us: PM 10:47 AM – 17 Apr 2017

There are powerful people who are unhappy with me. But, my commitment is to provide affordable healthcare for poor and the middle class: PM 10:50 AM – 17 Apr 2017

The PM seems to have jumped the gun to carry out this – to use one of today’s plenty “Modi-ism” – “surgical operation” on branded medicines. Discerning citizens even with a nodding acquaintance with politicians’ utterances take such loud protestations with a pinch of salt; in every welfare activity, we are wont not to be taken in by the government's pro-people motivations. Peel off the epidermis and the hypodermis will reveal the true intent! Mostly people's welfare is shambolic, it makes for good sloganeering, loud and majestic in its decibel, and to win brownie points at the hustings where voters unthinkingly swallow whatever is dished out. Frankly, no government (least the present one) can afford to ignore the big business houses in our emerging economy's electoral processes. Political pragmatism tells them that their acts must be craftily done with the sheen to help the poor. In the cacophony the common man suffers – or lives in a fool’s paradise till he loses the visions of this “paradise” – while the big pharma companies, druggists and hospitals remain as unfazed and unflustered as ever.

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% of world’s counterfeit generic drugs, soaring high above Egypt with 7% and China with 6%.

To be fair to the government, it has in April 2017 made changes to the Drug and Cosmetics Act (1940) making it mandatory for genetic drug manufacturers to submit Bioequivalence (BE)/Bioavailability (BA) study reports for approval as against the earlier practice of 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). No wonder barely 0.01% of the genetic drugs in the Indian market are tested for its potency and efficacy. In effect, 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 and convoluted 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 doubtless is the need 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 fully transparent with test results by uploading them in public domain. Any complaint from a consumer must be attended with a sense of immediacy and the same too put out on the website. But will the government bite such “dangerous” transparency that will jeopardize big pharma companies’ interest? I doubt if this will ever happen, given this government’s poor track record in refusing to appoint a Lokpal three years after coming to power! And 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 (1940). 

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. This 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 between lower prices on the one hand and quality medicine and discovery of breakthrough drugs on the other”. And recommends that “the Drug Price Control Order may be delinked from the National List of Essential Medicines”

Essential medicines, says the World Health Organization (WHO) are “those drugs that satisfy the health care 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 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 and life saving medicines and ensure that these medicines are available at a reasonable price to the general public.

What’s puzzling is the furtive effort of Niti Aayog to defeat the PM’s noble intentions by equating (in effect) lower prices of drugs under NLEM (and hence under DPCO) with poor quality. The digital magazine The Wire in a well-researched piece has shown how there has been an effort on the part of the PMO with Niti Aayog, Ministry of Health & Family Welfare, Department of Industrial Policy & Promotion, and Department of Pharmaceuticals on board to scupper efforts at popularizing generic drugs and instead hold a brief for multinational pharma firms. Their move to “trade-off” is to delink DPCO from the NLEM will result in soaring of prices of essential drugs. It also runs counter to the government’s affidavit in the Supreme Court and the Minister of Health and Family Welfare’s reply in the Rajya Sabha. The move is blasphemous and highly condemnable. But such are the ways how intellectual dishonesty is sown in Indian system!

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