5 May 2020: The Hindu Editorial Analysis
1) App for one season: on Centres directive to use Arogya Setu-
The Centre’s national directive for the mandatory use of its contact tracing app, Aarogya Setu, as part of its COVID-19 combat measures, falls short of established legal standards for the protection of privacy.
The first requirement laid down by the Supreme Court in K.S. Puttaswamy, namely, a law authorising the involuntary use of such an app, has not been fulfilled. The government has no power to make the app’s use compulsory without legislative authorisation.
NO LEGISLATIVE GUIDANCE:
There is no legislative guidance for the app’s purpose, functioning, and the nature of the use of the sensitive personal data it collects. Going by the directive issued under the Disaster Management Act, all people residing in ‘containment zones’, all government and public sector staff and all employees, both public and private, who are allowed to work during the lockdown, will have to download the app.
Lawyers and activists have raised concerns not only over privacy; they also fear that assessments made on the basis of information collected may be used to restrict public movement and access. The absence of a sunset clause or a rule limiting the purpose for which the data can be used or spelling out the entities authorised to use them are all valid concerns. Some, like Congress leader Rahul Gandhi, fear it could become a surveillance tool.
(In public policy, a sunset provision or clause is a measure within a statute, regulation or other law that provides that the law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law)
However, Aarogya Setu seems to be quite popular — downloads have crossed 75 million. And what the government has going for itself is that many countries are implementing mobile app use for contact tracing. More and more governments are introducing applications for automated location services to trace the contacts of those infected.
MODELS FOLLOWED ACROSS:
India should abide(follow) by best practices elsewhere.
The EU has laid down guidelines to the effect that such app use should be voluntary(wish), that it should preserve user privacy and should not be used after it becomes no longer necessary.
Israel’s Supreme Court recently struck down emergency powers given to the country’s intelligence agency to trace the phone location of COVID-19 patients without enabling legislation.
Australia’s tracking app has sparked privacy concerns, but the government has released a privacy impact assessment.
While the intention behind the app’s introduction may be good as it is a given that the government is keen on doing everything possible to keep a watch on the spread of the virus so that the lockdown, as well as relaxations given to zones based on colour-coding, are effective.
It would be well-advised to listen to privacy concerns raised by the Opposition, allay(remove) fears that it may become a permanent mass surveillance(observation) instrument and ensure that there is sufficient anonymising(remove identifying particulars or details from (something, especially medical test results) for statistical or other purposes) of data and its limited access. It has a duty to resort to methods that cause the least harm.
2) Off course: On Cauvery water issue-
The Cauvery is a perennial(lasting or existing for a long or apparently infinite time) source of controversies. The latest political row to erupt in Tamil Nadu is around the Centre’s April 24 notification bringing the Cauvery Water Management Authority(CWMA) under the administrative control of the Union Ministry of Jal Shakti, which was created a year ago by combining two Ministries.
Several political parties, especially the Opposition, and some farmers’ associations were upset with the notification on the ground that the move has reduced the Authority to a “puppet(person, group, or country under the control of another)” of the Centre. They point out that the CWMA was created on the direction of the Supreme Court in February 2018.
It is also argued that between June 2018-May 2019, when the Union Ministry of Water Resources was in existence, there was no public notification on the CWMA being designated as an organisation under the Ministry. Such an argument is weak, as the CWMA, a body corporate, has been working all along under the Ministry.
Even in the case of its predecessor, the Cauvery River Authority (1998-2013) with the Prime Minister as the Chairman and Chief Ministers of the basin States as Members, the Union Ministry of Water Resources had administrative control.
In fact, the CWMA has had only a part-time head, the chairman of the Central Water Commission (CWC), attached to the Ministry. Besides, there are eight inter-State river water boards under the Jal Shakti Ministry. Along with the CWMA, four other bodies, including the Krishna and the Godavari Water Management Boards — which have been in existence since 2014 following the re-organisation of Andhra Pradesh — were designated to be under the Ministry.
The formalisation of the CWMA’s status corrects an apparent lapse(failure) on the Ministry’s part and addresses administrative issues.
MAKING CWMA FULLY OPERATIONAL:
Apart from meeting the procedural requirement, the notification does not, in any way, alter(change) the character, functions or powers of the CWMA that form part of a scheme drawn up a few years ago, and which was approved by the Supreme Court. If there is anything the Centre can be blamed for, it is the way the CWMA functions.
Even two years after its formation, the Authority does not have a full-fledged chairman. The Centre would do well to act, at least now, in making the CWMA fully operational, when the southwest monsoon is about to set in.
Successive governments at the Centre have been wary(worried) of acting decisively, other than under the orders of the Supreme Court for fear of alienating(make (someone) feel isolated or estranged) voters in one of the States involved. The latest episode should convince political parties that relentless(unstopping) politicisation of each and every matter concerning water resources does not benefit the stakeholders.
The parties should realise that electoral gains or losses are not always linked to their stand on any one issue, even if it is the Cauvery, the lifeline of Tamil Nadu’s rice bowl. The real issue with the Cauvery waters Authority is that it is rudderless(lacking a clear sense of one's aims or principles).
3) MPLADS, its suspension, and why it must go-
(Members of Parliament Local Area Development Scheme (MPLADS) is a scheme formulated by Government of India on 23 December 1993 that enables the members of parliaments (MP) to recommend developmental work in their constituencies with an emphasis on creating durable community assets based on locally felt needs. Each MP is allocated Rs. 5 crore per year since 2011-12 which has been increased from Rs. 5 lakh in 1993-94 and Rs. 2 crore in 1998-99. MoSPI disburses funds to district authorities, not directly to MPs)
All Opposition parties have been unanimous(united) in their criticism of the government’s recent move to suspend the Members of Parliament Local Area Development Scheme (MPLADS) for two years, approved by the Cabinet. The government’s reason is this: to use these funds “to strengthen the government’s efforts in managing the challenges and adverse impact of COVID-19 in the country”.
Such political unanimity(unity) is not very common but does happen whenever self-interest is involved. Under the scheme, each Member of Parliament “has the choice to suggest to the District Collector for works to the tune of â‚¹5 crores per annum to be taken up in his/her constituency”.
It must be said upfront that notwithstanding(despite the fact) the fact that unilateral decision-making is inappropriate in a democracy, the decision to suspend MPLADS for two years is a good first step. In fact, the MPLADs scheme should be completely abolished, and for the following reasons.
FIVE REASONS FOR ABOLITION OF MPLAD:
First, the scheme violates one of the cardinal(fundamental) principles, which though not specifically written down in the Constitution, actually permeates(spread) the entire Constitution: separation of powers(between legislative, executive and judiciary).
Simply put, this scheme, in effect, gives an executive function to legislators (read legislature). The argument that MPs only recommend projects, but the final choice and implementation rests with the district authorities is strange; there are hardly any authorities in the district who have the courage to defy(deny) the wishes of an MP.
Second, implementation of the scheme has always left much to be desired. The details below, which are some of the observations made by the Comptroller and Auditor General (CAG) of India, in a report make it clear: Expenditure incurred(borne) by the executing agencies is being less than amount booked. Utilisation of funds was between 49 to 90% of the booked amount.
Though the scheme envisages(predicts) that works under the scheme should be limited to asset creation, 549 of the 707 works test-checked (78%) of the works recommended were for improvement of existing assets.
Wide variations were reported in quantities executed against the quantities specified in the BOQ (Bills of Quantity) in 137 of the 707 works test-checked. Variations ranged from 16 to 2312%. (“2312%” is the figure actually mentioned in the audit report).
Use of lesser quantities of material than specified by contractors resulting in excess payments and sub-standard works; “no accountability for the expenditure in terms of the quality and quantities executed against specifications”
Delays in issuing work orders ranging from 5 to 387 days in 57% of the works against the requirement of issuing the work order within 45 days of the receipt of recommendation by the MP.
Extensions of time granted to contractors without following the correct procedure; Register of assets created, as required under the scheme, not maintained, therefore location and existence of assets could not be verified.
Overall the implementation of the scheme was marked by various shortcomings and lapses... These were indicative of the failure of internal control mechanisms in the department in terms of non-maintenance of records.
GAPS IN UTILIZATION:
Third, there are wide variations in the utilisation of the MPLAD amount in various constituencies. A report published in IndiaSpend has some very interesting insights based on data made available to it by the Ministry of Statistics and Programme Implementation.
Some of these are: “A year after they took office, 298 of 542 members of the 16th Lok Sabha — India’s lower house of parliament — have not spent a rupee from the â‚¹5 crore that is set aside annually for them to develop their constituencies”; 508 MPs (93.55%) did not, or could not, utilise the entire MPLADS amount from May 4, 2014 till December 10, 2018, in 4 years and 7 months.
Only 35 MPs of the Lok Sabha utilised the entire amount of MPLADS during this period; Though â‚¹1,757 crore had been released for MPLADs, only â‚¹281 crore had been utilised by all the 543 MPs till May 15, 2015. This means only 16% of the money had been spent in one year by all the MPs put together, because the Lok Sabha was constituted in May 2014. Since the MPLADS began in 1993, â‚¹5,000 crore was lying unspent with various district authorities by May 15, 2015.
It is clear from the details above, as well as later experience, that most MPs use money under MPLADS quite haphazardly(manner lacking any obvious principle of organization), and a significant portion of it is left unspent.
APPEASE OR OBLIGE:
Fourth, added to the data above is fairly widespread talk of money under MPLADS being used to appease(satisfy) or oblige(make (someone) legally or morally bound to do something) two sets of people: opinion-makers or opinion-influencers, and favourite contractors.
Sometimes these two categories overlap. An often-heard tale is that of the contractor being a relative, close friend, or a confidant of the MP, and the contractor and the MP being financially linked with each other.
LEGALITY OR CONSTITUTIONALITY:
Finally, we come back to the legality or constitutionality issue which was mentioned earlier. The constitutional validity of MPLADS was challenged in the Supreme Court of India in 1999, followed by petitions in 2000, 2003, 2004, and 2005. The combined judgment for all these petitions was delivered on May 6, 2010, with the scheme being held to be constitutional.
With due respect to the top court, it must be said that the Court does not seem to have been able to appreciate the situation in totality. It seems to have placed an unquestioned trust in the efficacy of the scheme of implementation of MPLADS drawn up by the government without an assessment of the situation prevalent(existing) in the field, evidence of which is available in audit reports wherein gross irregularities and infirmities(weakness) in implementation have been pointed out.
The possibility that implementation of a lot of schemes bears(has) no relationship to how the schemes were intended to be implemented, seems to have completely escaped the attention of the Court. Common experience does not support this because of large gaps being found in actual implementation.
CASES OF MISUSE:
Reports of underutilisation and misutilisation of MPLADS funds continue to surface at regular intervals but there seems to have been no serious attempt to do anything about it till now.
There are innumerable instances of misuse of these funds. One prominent example is the construction of a fountain in the open space of an unauthorised settlement, or a jhuggi jhopdi colony, which did not have provision of drinking water.
The general belief in the settlement was that the contractor who bagged the contract to build the fountain was related to the local Member of Parliament.
Therefore, it would be in order to convert the two-year suspension into the complete abolition of this undesirable and unconstitutional scheme.