Archives: Publication

Opinion: K P Krishnan

Parliament has to reconcile the twin challenge of protecting people not just from data fiduciaries but also from the protector itself.

The Personal Data Protection Bill (Bill) was introduced in the Lok Sabha in December 2019 and referred to a joint parliamentary committee (JPC). The JPC submitted its report recently. The original Bill was aimed at protecting personal data. The JPC felt that it is impossible to distinguish between personal and non-personal data. Hence it recommended that the Bill should provide for the protection of all data and it is now recommended to become the Data Protection Bill.

Experts have commented on domain issues dealt with in the Bill and the report. This piece will focus on an important but less discussed aspect of the Bill namely the design of the statutory regulatory authority (SRA). The Bill sets up a Data Protection Authority (DPA) which is empowered to take steps to protect the interests of individuals prevent the misuse of personal data and ensure compliance with the Bill.

Very broadly “regulation” is interventions by public agencies to correct market failure by inducing modification or change in behaviour in the activities of a target population. “Regulation” by the SRAs is more than just administrative interventions.

Chapter XIV of the Bill empowers the DPA to make regulations to carry out the provisions of the Bill. It lists specific areas for regulation besides an all-encompassing omnibus clause. In addition according to chapter IX of the Bill the DPA has the power and the duty to promote good data protection practices and facilitate compliance. These will also be effected through regulations made by the DPA and hence will have the force of law. These codes will be to ensure the quality of the data its retention its processing including obtaining of consent standards of security safeguards anonymisation etc. This chapter also has the all-encompassing omnibus general clause.

This arrangement is not unusual in India but it is important to understand how “regulation” works. A parliamentary legislation empowers an SRA to make subordinate regulate the substance of the domain. In effect the DPA will “legislate” extensively on this domain. More of the legal rights and obligations for us will flow from regulations made by the DPA and less from parliamentary law.

In addition according to chapter IX of the Bill the DPA has the powers of a civil court to call for information as well as conduct inquiries on data fiduciaries. Based on these inquiries the DPA can pass orders including suspension cancellation or modification of the registration granted to a data fiduciary. So in the extreme case the DPA can deny the right of that entity to carry on the business of a data fiduciary —a fundamental right under Article 19 of the Indian Constitution. Further in accordance with the provisions of chapter X of the Bill for statutory non-compliance the DPA can impose penalties which can go up to 4 per cent of the total worldwide turnover of the data fiduciary!

These are what we understand as judicial or quasi-judicial powers. The DPA which in the previous paragraph emerged as the principal legislator for “regulation” of data protection has also emerged as the first level adjudicator for violations of the very legislation that it wrote and inquired into.

It should be clear now even to the layperson that the DPA is more than a department. It is a mini-state as it is empowered to legislate implement the legislation as well as adjudicate on disputes with external agents on the very legislation that it writes and enforces. But we all thought that the principle of separation of powers and checks and balances were part of the basic structure of our Constitution?

Way back in 2004 the Supreme Court stated in the context of the SEBI Act that “… Integration of powers by vesting legislative executive & judicial powers in the same body in future may raise several public law concerns”. In recent times courts have been less forgiving and increasing their scrutiny and setting aside more regulatory actions than in the past.

Domains like data protection and finance (crypto assets fintech as examples) require “regulation” of the kind described above. They are technical and are characterised by fast and continuously evolving developments. Hence nimble-footed legislative responses and speedy adjudication by the same expert agency are perhaps a necessary evil. The challenge however is to reconcile this necessity with fundamental principles of Indian Constitutional rule of law.

Nearly a decade ago the Financial Sector Legislative Reforms Commission (FSLRC) had recommended a comprehensive framework for governance and accountability of SRAs including internal and external checks and balances. These included measures for a strong and independent board rigorous selection of board members empowering boards of SRAs to be an oversight on management greater accountability of SRAs to Parliament and greater transparency and outreach. Other best practices have also begun to be developed by more recent Indian SRAs. In a slight departure from other regulatory legislation section 196(1)(s) of the India Bankruptcy Code 2016 requires the regulator the Insolvency and Bankruptcy Board of India (IBBI) to “specify mechanisms for issuing regulations including the conduct of public consultation processes before notification of any regulations”. Going beyond this limited requirement the IBBI issued the IBBI (Mechanism for Issuing Regulations) 2018 and built in the requirement of an economic analysis of every regulation and a review of regulations every three years to decide on their continuance.

With a DPA that is personned entirely by whole- time members silence on regulation-making process and allowing instruments like “directions” which are not subject to the rigour applicable to “regulations” the Bill and the JPC report have unfortunately missed this entire aspect of regulatory design and governance. Hopefully the government will incorporate these essential design features in the proposed DPA framework when finalising the Bill. It is important to note that given the nature of the domain nearly every Indian and every commercial activity would be in the DPA’s ambit. Indians certainly need protection of their data. With an omnipotent DPA an ominous Latin phrase comes to mind: Quis custodiet ipsos custodes (Who will guard the guardian?).

The writer is professor at NCAER member of a few for-profit and not-for- profit boards and former civil servant. Views expressed in the article are personal. 

National health survey indicates the urgent need for lowering maternal and infant mortality rates as well as for promoting responsible and mature parenthood.

GoI’s decision last week to introduce a Bill increasing the legal age of marriage for women from 18 to 21 years has drawn a lot of attention receiving both bouquets and brickbats. Among its other suggestions the Bill seeks to amend the Prohibition of Child Marriage Act 2006 to bring women at par with men in terms of marriageable age (21 for both) and to prohibit child marriage irrespective of any currently prevalent law custom usage or practice.

Those supporting the move claim it would improve health and education outcomes for girls by reducing the incidence of child marriages and early pregnancies. On the other hand opponents of the Bill argue that the enactment of such a law in a deeply patriarchal society will not only compromise the autonomy of women in their marital choices vis-a-vis domineering parents but could also imperil the legal rights of currently married women below 21 should they be widowed or abandoned by their husbands before attaining the legal age.

Women and Child Development Minister Smriti Irani cited figures from the recently released compendium of fact sheets on health and empowerment indicators under the fifth round of the National Family Health Surveys (NFHS-5) for 2019-21 to bolster GoI’s argument. She pointed out that as per NFHS-5 data 7% of girls between 15 and 18 years were found to be pregnant and over 23% were married below the age of 18. These figures highlighted the urgent need for lowering both maternal mortality and infant mortality rates as well as for promoting responsible and mature parenthood for both the father and mother which has a direct bearing on their age at marriage.

The Bill is the result of a recommendation by a task force set up in June 2020 led by ex-Samata Party president Jaya Jaitley to examine this question. The task force report ostensibly avers that a delay in marriage has positive economic social and health benefits for families women children and society at large.

In this context it is imperative to unpack the small print in the Bill especially correlating it to the findings of NFHS-5 which covered 14 states and Union territories including Arunachal Pradesh Chhattisgarh Haryana Jharkhand Madhya Pradesh Odisha Punjab Rajasthan Tamil Nadu Uttar Pradesh Uttarakhand Chandigarh NCT Delhi and Puducherry. Some of the significant data in NFHS-5 pertain to the ‘Woman’s Schedule’ component of the survey covering a diverse spectrum of indicators including marriage fertility healthcare nutrition reproductive health women’s empowerment and domestic violence.

Wedding Belles Can Wait

The two key questions on gender-based indicators related to marriage in NFHS-5 concerned the proportion of women aged 20-24 years married before 18 and the adolescent fertility rate for women aged 15-19 years. At the state level the most impressive results on these questions were recorded by Rajasthan which showed a decline in child marriage among girls from 35.4% in NFHS-4 conducted during 2015-16 to 25.4 in NFHS-5. Simultaneously the adolescent fertility rate in the state declined from 46% to 31% over the two survey periods.

The other two states to record a notable fall in both the incidence of underage marriages and fertility rates among female teenagers were Chhattisgarh and Haryana. In the former the incidence of girls married below the marriageable age dropped from 21.3% to 12.1% and the adolescent fertility rate declined from 36% to 24%. The corresponding declines witnessed in Haryana were from 19.4% to 12.5% in child marriages and from 41% to 27% in the teenage pregnancy rate. Overall India recorded a reduction in child marriages from 26.8% to 23.3% whereas the adolescent fertility rate for women aged 15-19 dropped from 51% to 43%.

A December 2016 ActionAid study (bit.ly/3qtTK66) based on the India Human Development Survey 2 (IHDS-2) had shown a drop in the percentage of women in India in the 20-24 age group who were married before 18 from 56.8% in 1992-93 (NFHS-1) to 36.2% in 2011-12 (IHDS- 2). The IHDS conducted jointly by the National Council of Applied Economic Research (NCAER) and University of Maryland in two rounds in 2004-05 and 2011-12 interviewed 41554 households in 1503 villages and 971 urban neighbourhoods across India.

The IHDS figures certainly offered an occasion for some cheer but the ActionAid report came with the caveat that the number of child marriages and their prevalence among girls continued to be alarmingly high. Even the last census in 2011 revealed that 7.4 million persons were married before 18 and of these 88% were girls.

Man Proposes Law Disposes

So will the proposed Bill on increasing women’s marriageable age help improve these worrisome indicators? Activists of child and civil rights assert that passage of the Bill will lead to a toothless law if its implementation is not accompanied by resolution of related issues like the eradication of the education gap between boys and girls and strengthening women’s autonomy and awareness about their rights and privileges.

Until that happens however we could derive some consolation from the fact that at least the long-pending issue of ensuring gender equity in marriage by bringing at par the marriageable age for women and men has been brought into the mainstream discussion at the highest policy level.

Anupma Mehta is Editor at the National Council of Applied Economic Research (NCAER). Views expressed in the article are personal. 

Indian cashew is exported to more than 60 countries in the world with the main markets being UAE USA Netherlands UK Germany Japan and Australia.

The country earned foreign exchange equivalent to Rs. 5870.97 crores from the export of 84352 metric tonnes of cashew nuts during the year 2017-18. 

Maharashtra accounts for one-third of the country’s total cashew production of which a significant proportion (over 60 per cent) is produced in the Ratnagiri and Sindhudurg districts therefore it is reasonable to assume that cashew from these districts accounts for a sizeable share in country’s export to other countries.

Hence cashew grown in Ratnagiri and Sindhudurg clearly has a huge demand in the international market. 

According to the Directorate of Cashewnut and Cocoa Production Ministry of Agriculture and Farmers’ Welfare Maharashtra accounted for about 33 per cent of the total country’s cashew production in 2017-18. Its share has remained almost unchanged since the last ten years.

Figure 1 presents the shares of the top cashew-producing States in the country in terms of both area and production. The figure also depicts the productivity of cashew in these States as per the latest data from 2017-18.   

Figure 1: Shares of States in the Production and Area under Cashew Cultivation

Source:Directorate of Cashewnut and Cocoa Production Ministry of Agriculture and Farmers Welfare

Maharashtra far exceeds the other cashew producing states in terms of area under cashew cultivation cashew production and also its productivity at 1378 kg/hectare.

Within Maharashtra cashew is a traditional crop in Konkan region comprising Palghar Raigad Ratnagiri and Sindhudurg districts. The total area under cashew cultivation is 1.91 lakh hectares of which more than 75 per cent is in the South Konkan region of Maharashtra mainly in Sindhudurg and Ratnagiri district.

While the productivity of Raigad is the highest at 1500 kg/hectare but its share in both area and production is very small. The productivity in Sindhudurg is impressive at 1378 kg/ha. Together Ratnagiri and Sindhudurg account for more than 95 percent of the area under cashew production in South Konkan region.

Their share in production is also more than 95 percent. Clearly there is an abundance of cashew produce for overseas market. 

Figure 2: Shares of the South Konkan Districts in the Production and Area under Cashew Cultivation

Source:District Superintendent Agriculture Officer Ratnagiri.

There are about 800 cashew-processing units in Ratnagiri and Sindhudurg district. Most of these are small labour-intensive units that are capable of generating significant employment opportunities especially for rural women.

Apart from this there is one in Ratnagiri district and two-cashew cluster in Sindhudurg district to provide common facilities to cashew processing units. 

Against this backdrop the district stakeholders of the Konkan region processing units and cashew farmers are unanimous in putting up their voices for a regional branch of Cashew Export Promotion Council of India (CEPCI) in either of the two districts.

They have argued this on the ground that having a regional branch will increase the export of cashew kernel as well as Cashew Nut Cell Liquid (CNCL) and area under cashew cultivation. This initiative is also expected uplift the economy of the entire south Konkan region and increased capital formation and foreign exchange earning for the economy as a whole.  

The Government of Maharashtra is taking several initiatives to promote the export of mangoes produced in the two districts and has announced that the districts of Ratnagiri Sindhudurg Thane and Raigad in the Konkan region would comprise the Agri-export Zone for Alphonso mangoes. Central Government’s scheme of One District One Product (ODOP) also considers only Mango for Ratnagiri and Sindudurg.

Since both cashews and mangoes are major cash crops in the Ratnagiri and Sindhudurg district the cashew growers are demanding some initiatives for the promotion of cashew kernel also. One of these is the setting up of a regional office or a branch of the Cashew Export Promotion Council in either Ratnagiri or Sindhudurg district and considering cashew along with mango for ODOP.

The cashew and mango grown in Ratnagiri and Sindhudurg have huge demand in international market. But these are not directly exported from the districts. The Jawaharlal Nehru Port Trust Navi Mumbai is 300 km. away from Ratnagiri. The sources of transportation are Konkan railway and Mumbai Goa highway.  

The cashew processing units in South Konkan region will be worth contributing in processing of 158537 MT cashew from domestic market as well as cashew imported from African countries.

The cashew export promotional council will play prominent role in the export of cashew kernel in the global market. It will be also helpful to establish brand image of Konkan Cashew Kernel like Ratnagiri Alphonso mango. 

Currently due to financial constraints the processing units are not optimally utilised. Rather than exporting they are forced to send their produce to other states like Goa Kerala and Andhra Pradesh etc. Also the processing units operate for only 4 months in a year due to lack of working capital.

For providing necessary liaison for bringing together foreign importers with member exporters of cashew kernels also a regional branch of CEPCI could provide necessary network. This will result in higher profitability to the cashew processing units due to attractive prices in the global market. 

In Ratnagiri and Sindhudurg districts there are infrastructural facilities required for promotion of mangoes cashew kernel processed fish  and other products like ports as Jaygad port Javaharlal Neharu Port Trust ( JNPT)  authority for issue of Phy-  sanitary  certificate required for export Export Promotion Agency Office Export Inspection Agency etc.

Maharashtra State Agricultural Produce Marketing Board is providing storage facility and loan facility on the pledge of cashew through Agriculture Produce Marketing Committee. If the regional office of Cashew Export Promotion Council extends support to the cashew processors it will be helpful to growers of cashew to get remunerative price to the produce earning more profitability to the cashew processors due higher prices in the export market and huge employment generation to the illiterate rural women folk.

Poonam Munjal Senior Fellow National Council of Applied Economic Research and Nijara Deka Associate Fellow National Council of Applied Economic Research. Views are personal.

Notable findings from the Woman’s Schedule component of the National Family Health Survey

The recently released compendium of Fact Sheets on various health and empowerment indicators under the fifth round of the National Family Health Surveys (NFHS-5) for the period 2019-21 give us something to shout about especially with regard to women’s empowerment and attainment of the UN’s Sustainable Development Goal (SDG 5) on empowering women and achieving gender equality.

The 14 States and UTs covered in the survey include a cross-section across the country including Arunachal Pradesh Chhattisgarh Haryana Jharkhand Madhya Pradesh Odisha Punjab Rajasthan Tamil Nadu Uttar Pradesh Uttarakhand Chandigarh NCT Delhi and Puducherry.

The indicators traditionally analysed in the Survey pertain to estimates pertaining to population health family planning and nutrition.

However what is remarkable about NFHS-5 are the notable findings from the Woman’s Schedule component of the Survey which covers a wide range of subjects including marriage fertility contraception children’s immunisations and healthcare nutrition reproductive health women’s empowerment and domestic violence.

Rise in Women’s Empowerment

The two key sections posing questions on gender-based indicators in the Survey include ‘Women’s Empowerment’ covering women aged 15-49 years and domestic violence focusing on women aged 18-49 years.

Under the Empowerment section each respondent that is a currently married woman was asked about the extent of her autonomy in three key household decisions about health care for herself making major household purchases and visits to her family and relatives.

Significantly 88.7 per cent of the women including as many as 91 per cent urban and 87.7 per cent rural women responded positively to this question showing a rise from the corresponding overall figure of 84 per cent recorded during the previous NFHS in 2015-16.

Among the other questions the opening and use of bank accounts by women showed the most promising results. A total of 78.6 per cent of the women in urban areas reported owning and independently operating their bank accounts going up from a much lower figure of 53 per cent in the previous survey.

There has also been a conspicuous rise in land ownership among women from 38.4 per cent to 43.3 per cent and in ownership and use of mobile phones from just about 45 to 54 per cent during the corresponding period. 

Persistence of Domestic Violence

A component that always attracts attention in any gender-based survey mainly because of its association with the respect that women enjoy within and outside their homes is that of the physical violence they are subjected to.

The data pertaining to gender-based or sexual violence for women aged 18-49 years in NFHS-5 is somewhat though not totally heartening as it shows a decline over NFHS-4 in the case of both spousal violence from 31.2 to 29.3 per cent and physical violence during pregnancy from 3.9 to 3.1 per cent.

However the celebration may be more guarded if these data are seen in correlation with comparable data pointing to a rise in domestic violence perpetrated against women during the nation-wide COVID lockdowns in 2020 and early 2021 which coincide with the period covered under NFHS-5.

For instance the number of complaints of domestic violence against women received by the National Commission for Women (NCW) rose sharply from 2960 in 2019 to 5297 in 2020. And in the first quarter of 2021 the NCW continued to receive over 2000 complaints every month of crimes against women with nearly one-fourth of them related to domestic violence.

More specifically the NCW data recorded 1463 complaints of domestic violence against women during the period January-March 2021. So is there a discrepancy between the NCW and NFHS-5 figures? 

At the State level the most impressive results on violence in NFHS-5 have been recorded by Chhattisgarh which showed declines in spousal violence from 36.8 to just over 20 per cent and in pregnancy-related violence from 4.9 to 0.9 per cent over the two survey periods.

Punjab and Haryana too have registered a significant fall in both categories of gender violence. In contrast the States of Jharkhand and Rajasthan are outliers with both recording a rise in violence during pregnancy the former from 2.8 to 3.1 per cent and the latter from 1.4 to 2.1 per cent during the corresponding periods.

The most alarming result has however been witnessed in Uttarakhand which has recorded a notable rise in both spousal and pregnancy-related violence.  

What Does IHDS Data Say?

When seen in totality however one wonders if the figures conceal more than they reveal. How far have we come from the findings of the nationally representative India Human Development Survey (IHDS)?

The IHDS which was conducted jointly by the National Council of Applied Economic Research (NCAER) and University of Maryland in two rounds in 2004-05 and 2011-12 interviewed 41554 households in 1503 villages and 971 urban neighbourhoods across India.

The IHDS posed a direct question to women on whether they were regularly beaten by their husbands for any of the following reasons:  leaving home without notifying their husbands failing to pay dowry neglecting household chores not cooking acceptable meals and indulging in extra-marital affairs.

Although having relations with other men was the most frequent reason for the beatings as many as 30-40 per cent of the interviewees reported being subjected to violence for the other four reasons too.   

Significantly the IHDS results suggest that economic empowerment such as having a job and a reasonable income could mitigate the incidence of domestic violence against women and ensure better outcomes in their marital lives.

The findings of IHDS also indicate that the empowerment of women through inheritance and education which would enhance their ownership of property and wealth are likely to produce more desirable results and reduce the perpetration of violence and abuse against them.

Interestingly as mentioned above the gender module in NFHS-5 too shows an overall improvement in the indicators of female ownership of land and income earned from paid work and the possession and independent operation of bank accounts by women.

Although it may not be possible to establish a direct causal relation between female empowerment in terms of wealth and assets on one hand and better treatment of married women by their spouses on the other hand there seems to be an underlying association between these two outcomes.

As of now the findings in NFHS-5 do offer some reason for a muted celebration.   

Anupma Mehta is Editor at the National Council of Applied Economic Research (NCAER). Views expressed in the article are personal.