Uniform civil code: will it work in India?

It needs to be asked if it is possible or practicable to reconcile divergent laws and formulate a uniform or common code acceptable to all the communities

Article 44 of the Constitution — which talks of a uniform civil code for all Indians — was the subject of a recent debate in Chennai.

The main argument of those who spoke in favour of such a code was that it has the potential to unite India because Hindus and Muslims had followed the “common customary Hindu civil code” smoothly till 1937 when “the Muslim League-British combine” divided them by imposing sharia on Muslims through the Muslim Personal Law (Shariat) Application Act.

But only a minuscule minority of Muslims followed Hindu customs before 1937. Even this section had the right under laws such as the Cutchi Memons Act, 1920 and the Mahomedan Inheritance Act (II of 1897) to opt for “Mahomedan Law”. As for a majority of Muslims, there is enough evidence to show they followed Muslim law, not the Hindu civil code.

In 1790, when Governor-General Cornwallis introduced a three-tier court system in Bengal (which was subsequently extended to other parts of India) he included qazis and muftis as “law officers” to assist British judges. The highest criminal court of this system, Sadr Nizamat Adalat, was assisted by the chief qazi of the district and two muftis. In cases pertaining to Muslims it had to apply Islamic law as per the fatwas of these law officers, which were binding on the court. The British judges had to wait till 1817 to overrule the fatwas when a resolution was introduced to repeal their binding character (Rudolph Peters:Crime and Punishment in Islamic Law).

Before Cornwallis, Warren Hastings had decreed in 1772 that in matters of inheritance, marriage and other such religious affairs “the laws of the Koran with respect to the Mahomedans and those of the Shastra with respect to the Gentoos [Hindus] shall be invariably adhered to.” (Richard Shweder & Others: Engaging Cultural Differences). Even when the Indian Penal Code was enacted in 1860, Muslim personal laws were left untouched.

However, these laws were sometimes superseded by antiquated customs that had acquired the force of law. For example, as per prevailing custom, property received by a woman as inheritance or gift was not hers and had to be given back to the heirs of the last male owner [Muhammad v. Amir (1889) P.R. 31, cited in Mulla, Principles of Mahomedan Law]. As such customs deprived Muslim women of their property rights in Islam, Muslims wanted only Muslim law to be made applicable to them.

Act of 1937

The Shariat Act of 1937 was the result of this demand. It repealed all such provisions in earlier legislation that permitted custom to override ‘Mahomedan law’ in cases where the parties were Muslims. But the British did not impose this Act on all Muslims. It was made applicable (per Section 3) only to those Muslims who declared in writing their intent to come under it. This explodes the myth that it sought to divide Indians on communal lines.

Nevertheless, a comparative study of the personal laws of Hindus, Muslims and other minorities will reveal that the sheer diversity of these laws, coupled with the dogmatic zeal with which they are adhered to, cannot permit uniformity of any sort. In fact, the heterogeneity of Hindu law itself is such that even the possibility of a uniform Hindu code is ruled out.

Talking of marriage alone, under the Hindu Marriage Act, 1955, marriages may be solemnised in accordance with the rites and ceremonies of a variety of people who come under the definition of a Hindu. For instance, according to the saptapadhi form of marriage that is followed mostly in northern India, the marriage is deemed to be complete and binding when the couple take seven steps around the sacred fire.

On the other hand, in the south suyamariyathai and seerthiruththa forms of marriage are followed. Under these, the marriage is valid if the parties to the marriage declare in the presence of relatives that they are marrying each other, or if they garland each other, or put a ring on each other’s fingers or if the bridegroom ties a thali around the neck on the bride.

Rites and ceremonies

Also, for a marriage to be valid under Hindu law it has to be solemnised in accordance with the customary rites and ceremonies of at least one of the parties. Thus, if a Jain marries a Buddhist by performing the rites of a Sikh, the marriage is invalid (Sakuntala v Nilakantha 1972, Mah LR 31, cited inFamily Law by Paras Divan). In Muslim law there are no elaborate rites or ceremonies, but Sunni and Shia practices differ.

It, therefore, needs to be asked if it is possible or practicable to reconcile these divergent laws and formulate a uniform or common code that is acceptable to all communities.

India already has an optional civil code in the form of the Special Marriages Act, 1954. This, read with similar Acts such as the Indian Succession Act, 1925, provides a good legal framework for all matters of marriage, divorce, maintenance and succession for those who may wish to avoid the religion-based laws.

(The author is a peace activist and independent Islamic researcher. faizz@rocketmail.com

Understanding Article 370

Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future.

At the Bharatiya Janata Party’s recent Lalkar rally in Jammu, its prime ministerial candidate, Narendra Modi, called for a debate on Article 370. This is encouraging and suggests that the BJP may be willing to review its absolutist stance on the Article that defines the provisions of the Constitution of India with respect to Jammu and Kashmir. Any meaningful debate on Article 370 must, however, separate myth from reality and fact from fiction. My purpose here is to respond to the five main questions that have already been raised in the incipient debate.

Why it was incorporated

First, why was Article 370 inserted in the Constitution? Or as the great poet and thinker, Maulana Hasrat Mohini, asked in the Constituent Assembly on October 17, 1949: “Why this discrimination please?” The answer was given by Nehru’s confidant, the wise but misunderstood Thanjavur Brahmin, Gopalaswami Ayyangar (Minister without portfolio in the first Union Cabinet, a former Diwan to Maharajah Hari Singh of Jammu and Kashmir, and the principal drafter of Article 370). Ayyangar argued that for a variety of reasons Kashmir, unlike other princely states, was not yet ripe for integration. India had been at war with Pakistan over Jammu and Kashmir and while there was a ceasefire, the conditions were still “unusual and abnormal.” Part of the State’s territory was in the hands of “rebels and enemies.”

The involvement of the United Nations brought an international dimension to this conflict, an “entanglement” which would end only when the “Kashmir problem is satisfactorily resolved.” Finally, Ayyangar argued that the “will of the people through the instrument of the [J&K] Constituent Assembly will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.” In sum, there was hope that J&K would one day integrate like other States of the Union (hence the use of the term “temporary provisions” in the title of the Article), but this could happen only when there was real peace and only when the people of the State acquiesced to such an arrangement.

Second, did Sardar Vallabhbhai Patel oppose Article 370? To reduce the Nehru-Patel relationship to Manichean terms is to caricature history, and this is equally true of their attitude towards Jammu and Kashmir. Nehru was undoubtedly idealistic and romantic about Kashmir. He wrote: “Like some supremely beautiful woman, whose beauty is almost impersonal and above human desire, such was Kashmir in all its feminine beauty of river and valley...” Patel had a much more earthy and pragmatic view and — as his masterly integration of princely states demonstrated — little time for capricious state leaders or their separatist tendencies.

But while Ayyangar negotiated — with Nehru’s backing — the substance and scope of Article 370 with Sheikh Abdullah and other members from J&K in the Constituent Assembly (including Mirza Afzal Beg and Maulana Masoodi), Patel was very much in the loop. And while Patel was deeply sceptical of a “state becoming part of India” and not “recognising ... [India’s] fundamental rights and directive principles of State policy,” he was aware of, and a party to, the final outcome on Article 370.

Negotiations

Indeed, the synergy that Patel and Nehru brought to governing India is evident in the negotiations over Article 370. Consider this. In October 1949, there was a tense standoff between Sheikh Abdullah and Ayyangar over parts of Article 370 (or Article 306A as it was known during the drafting stage). Nehru was in the United States, where — addressing members of the U.S. Congress — he said: “Where freedom is menaced or justice threatened or where aggression takes place, we cannot be and shall not be neutral.” Meanwhile, Ayyangar was struggling with the Sheikh, and later even threatened to resign from the Constituent Assembly. “You have left me even more distressed than I have been since I received your last letter … I feel weighted with the responsibility of finding a solution for the difficulties that, after Panditji left for America ... have been created … without adequate excuse,” he wrote to the Sheikh on October 15. And who did Ayyangar turn to, in this crisis with the Sheikh, while Nehru was abroad? None other than the Sardar himself. Patel, of course, was not enamoured by the Sheikh, who he thought kept changing course. He wrote to Ayyangar: “Whenever Sheikh Sahib wishes to back out, he always confronts us with his duty to the people.” But it was Patel finally who managed the crisis and navigated most of the amendments sought of the Sheikh through the Congress party and the Constituent Assembly to ensure that Article 370 became part of the Indian Constitution.

Third, is Article 370 still intact in its original form? One of the biggest myths is the belief that the “autonomy” as envisaged in the Constituent Assembly is intact. A series of Presidential Orders has eroded Article 370 substantially. While the 1950 Presidential Order and the Delhi Agreement of 1952 defined the scope and substance of the relationship between the Centre and the State with the support of the Sheikh, the subsequent series of Presidential Orders have made most Union laws applicable to the State. In fact today the autonomy enjoyed by the State is a shadow of its former self, and there is virtually no institution of the Republic of India that does not include J&K within its scope and jurisdiction. The only substantial differences from many other States relate to permanent residents and their rights; the non-applicability of Emergency provisions on the grounds of “internal disturbance” without the concurrence of the State; and the name and boundaries of the State, which cannot be altered without the consent of its legislature. Remember J&K is not unique; there are special provisions for several States which are listed in Article 371 and Articles 371-A to 371-I.

Fourth, can Article 370 be revoked unilaterally? Clause 3 of Article 370 is clear. The President may, by public notification, declare that this Article shall cease to be operative but only on the recommendation of the Constituent Assembly of the State. In other words, Article 370 can be revoked only if a new Constituent Assembly of Jammu and Kashmir is convened and is willing to recommend its revocation. Of course, Parliament has the power to amend the Constitution to change this provision. But this could be subject to a judicial review which may find that this clause is a basic feature of the relationship between the State and the Centre and cannot, therefore, be amended.

Gender bias?

Fifth, is Article 370 a source of gender bias in disqualifying women from the State of property rights? Article 370 itself is gender neutral, but the definition of Permanent Residents in the State Constitution — based on the notifications issued in April 1927 and June 1932 during the Maharajah’s rule — was thought to be discriminatory. The 1927 notification included an explanatory note which said: “The wife or a widow of the State Subject … shall acquire the status of her husband as State Subject of the same Class as her Husband, so long as she resides in the State and does not leave the State for permanent residence outside the State.” This was widely interpreted as suggesting also that a woman from the State who marries outside the State would lose her status as a State subject. However, in a landmark judgement, in October 2002, the full bench of J&K High Court, with one judge dissenting, held that the daughter of a permanent resident of the State will not lose her permanent resident status on marrying a person who is not a permanent resident, and will enjoy all rights, including property rights.

Finally, has Article 370 strengthened separatist tendencies in J&K? Article 370 was and is about providing space, in matters of governance, to the people of a State who felt deeply vulnerable about their identity and insecure about the future. It was about empowering people, making people feel that they belong, and about increasing the accountability of public institutions and services. Article 370 is synonymous with decentralisation and devolution of power, phrases that have been on the charter of virtually every political party in India. There is no contradiction between wanting J&K to be part of the national mainstream and the State’s desire for self-governance as envisioned in the Article.

Separatism grows when people feel disconnected from the structures of power and the process of policy formulation; in contrast, devolution ensures popular participation in the running of the polity. It can be reasonably argued that it is the erosion of Article 370 and not its creation which has aggravated separatist tendencies in the State. Not surprisingly, at the opposition conclave in Srinagar in 1982, leaders of virtually all national parties, including past and present allies of the BJP, declared that the “special constitutional status of J&K under Article 370 should be preserved and protected in letter and spirit.” A review of its policy on Article 370, through an informed debate, would align today’s BJP with the considered and reflective approach on J&K articulated by former Prime Minister Atal Bihari Vajpayee. Only then would the slogans of Jhumuriyat, Kashmiriyat and Insaniyat make real sense.

(Amitabh Mattoo is Director, Australia India Institute, Professor of International Relations, University of Melbourne and Jawaharlal Nehru University.)

The Kiss of love and death

The last thing you would expect on a heritage walk in Hauz Khas is that the lovely archways or windows have overdressed and over made up couples necking in full public glare pretending to be in love with each other while photographers advise them on how to pose and pout at each other. At first I thought this was a joke, it had a very unreal feel to it till I saw the elaborate setup with cameras and lighting and some of the girls even had makeup assistants to boot. Hauz Khas with its pavilions, has plenty of arches, pillars and windows and all of them were choc-a-bloc with fake pre-wedding romance.

The three domed pavilion was a particular favourite and it was hogged all morning by a woman who kept tripping over a long rust skirt. She and her fiancée locked their arms around each other in great displays of passion. The young man took chivalry to another level by carrying her in his arms, all orchestrated by the photographer, and doing a couple of laboured pirouettes. All of us watched with bated breath, wondering if he could manage without dropping her, but in the end he set her down gratefully the ordeal had ended.

In addition to us, watching this spectacle adoringly was a thin young girl who couldn’t take her eyes off the couple as they pranced among the ancient arches. I could see the pre-wedding shoot had hit a home run with this girl. And as we meandered around the L shaped madrassa and Feroz Shah Tughlaq’s tomb, overlooking the lake, there were couples everywhere and attendant photographers. A girl was being taught to pout, all very awkwardly and another couple had in a master stroke of innovation. They brought along a rather small and dainty umbrella with frills and some gold design under which to pose for pictures.

Sitting on the weather-beaten stones, another bride-to-be, dressed in an unbecoming, green polka-dotted halter, was being made up with haste, as she tried to ignore the amused gaze of the visitors, while in the short grass photographers set up equipment and made sure the poses were modest, but suggestive. So this girl dressed in some flowing gold ensemble stuck close to her man and looked adoringly into his eyes while others hugged in front of tombs, giving the phrase ‘turning in one’s grave’ an altogether new meaning. We asked one of the couples what this was all about and they confirmed this was indeed a shoot before their wedding which was sometime next month. Obviously this had become part of some ritual much like the mehendi and the sangeet which has invaded marriages even in the south.

A day earlier, right wing activists disrupted the Kiss of Love protest held near the RSS headquarters in the capital but students incensed by moral lectures had had enough. The Kiss of Love movement, which began in Kerala, seems to have caught on and these moralists feel pain only when they see people displaying affection in public. Kissing is Western culture, say these oracles on what is Indian culture and its do’s and don’ts. But in the best tradition of hypocrisy, it’s perfectly okay to cling to each other in public, look deeply into each others’ eyes and pose in the most suggestive manner possible. Most of these poses seem to be borrowed from Hindi films where titillation rules the roost. Even that Sunday there was plenty of suggestion of what is possible, a trailer, really, frozen on hundreds of digital frames, of things to come. But this is a pre-wedding shoot you see and we must be modest and pretend. How is it that these same guardians of morality never think of stopping vulgar extravagant weddings or the huge amounts of dowry that families have to pay, or protest when women are burnt to death for not bringing enough money. That’s Indian culture, not Western, you see. We are like this only.

The history of Hauz Khas goes back to the 13th century and is a sterling example of planning and architecture, all totally lost on the mooning couples. The madrassa was established in the 1350s and also overlooks the lake which was dug during Allauddin Khilji’s reign and was named after him – Hauz-e-Ilai. The water body has been revived under a new plan and even if it’s treated sewage water, it has a serene emerald look in the dull morning haze. The lake had dried up completely, says Sohail Hashmi, the man who knows everything there is to know about the history of Delhi and who conducts these walks. He remembers going on day-long picnics at Hauz Khas when it was dry.

The saving grace was there were no pre-wedding shoots then. It’s the kiss of death to any monument.

Keywords: heritage walk in Hauz Khas, 

Stepping out of the shadows

It is rare that a single bilateral invitation conveys as much as Prime Minister Modi’s invitation to U.S. President Obama to be the chief guest at the Republic Day parade does. To begin with, the invitation corrects an anomaly, that has meant that America is the only world power never to have had a dignitary grace the occasion that Russian and Soviet leaders, as well as leaders of France, the U.K., Japan and China have, over 64 years. Secondly, the invitation signals that the India-U.S. relationship is now stepping out of the shadows on all aspects of bilateral relations: economic, political and military. In the past 23 years since India opened up its economy, trade with the U.S. has grown by 1000 per cent, and according to figures given by the Defence Minister in Parliament this August, the U.S. is now India’s biggest defence supplier. Add to this the deep people-to-people ties, built mainly by the more than three million Indian-Americans in the U.S., and thousands of students who graduate from American universities, and the visit will be what one diplomat described as an “open and honest acknowledgement of the relationship’s reality”.

Thirdly, the invitation, and its acceptance by the White House, signifies a much larger move on the world stage, a “coming out” of India and the U.S. with the ties they now share. For the past few months, Mr. Modi’s travels and public speeches have indicated a primacy to the United States that previous governments had stopped shy of giving. Some of the hesitation was owed to an unspoken suspicion of the U.S. felt in India’s establishment. It was this feeling of mistrust that guided much of the criticism of Mr. Manmohan Singh’s tenure during negotiations over the India-U.S. civilian nuclear deal, and spills over into issues of WTO and agricultural subsidies, as well as intellectual property rights. The concerns are also influenced by historical relations: the U.S.’s support to Pakistan during the Bangladesh war, its support of the Mujahideen and then the Taliban to defeat the Soviet Union in the Afghanistan war, and its refusal to take a position during the Kargil war. It would seem both levels of concerns are now in the past, and put aside by the Modi government as it embarks on a new course of relations with the U.S., including engagements with its strategic allies in the region, Japan and Australia. It may be in reaction to these developments that two other significant moves have been seen in India’s neighbourhood — the recent reachout by China to Sri Lanka, the Maldives and Afghanistan, and by Russia to Pakistan with a new defence cooperation agreement. Even as India now prepares to celebrate its shared values with the U.S., the larger meaning of President Obama’s forthcoming visit has clearly not gone unnoticed.

Rebuilding a regional architecture

India must lift its game for SAARC’s rescue and resuscitation. It must lead by example, building trust with its neighbours, showing solidarity, and forging with them a habit of cooperation

The much delayed South Asian Association for Regional Cooperation (SAARC) summit in Kathmandu, on November 26-27, exactly six months to the date from Prime Minister Narendra Modi’s swearing-in ceremony, affords him an opportunity to reconnect with India’s neighbours, this time inventively to revive moribund regional cooperation in South Asia. When SAARC was constituted three decades ago, India was hampered by limited resources for financing partnerships and investments in the region. This now is no longer the case.

Good relations with neighbours is a priority for India. But for this, India has to commit to and accelerate its efforts towards forging closer bilateral and regional partnerships and economic integration within the subcontinent and beyond.

India accounts for well over two-thirds of SAARC’s area, three quarters of its population, and nearly four-fifths of its GDP. More than its relative size, population and resources, it is India’s ongoing social and economic transformation that makes it the natural fulcrum of cooperation in the region.

A sombre outlook

India will have to underwrite the creation of regional public goods for South Asians to integrate. It can do so by facilitating optimal utilisation of the region’s natural resources, building regional infrastructure, creating connectivity within the region and with the world — with energy grids, cross-border transport networks, coastal shipping, air links, roads, railways and waterways, besides flood and other natural disaster mitigation and prevention measures. It can implement trade facilitation measures, thereby lowering transaction costs and generating greater regional investment and employment.

South Asian cooperation faces multiple challenges. With about a quarter of the world’s population spread over four per cent of the global surface, South Asia constitutes the world’s second least developed region after Sub-Saharan Africa. Its per capita GDP, in terms of purchasing power parity, is three times below the global average. It has more poor people than the rest of the world. There is a dramatic disproportion between its population and share in global output and trade.

While the contiguity of countries constituting SAARC is complemented by cultural commonalities and common terrain, temperament, and civilisational space, these were fractured by the borders created in 1947, and poor political relationships thereafter. The advantages of their cultural congruence and shared history and geography were soon dissipated. SAARC has remained saddled with this legacy, and India is viewed with angst by many in its neighbourhood.

Sixteen years ago, the SAARC Group of Eminent Persons had charted an ambitious, three-stage road map for South Asia: a South Asia Free Trade Area, followed by a Customs Union and a broader Economic Union by the year 2020. Mr. Atal Bihari Vajpayee lent his support for the creation of a South Asian Economic Union at the previous summit in Kathmandu in 2002. The 2004 Islamabad Summit called for South Asian energy cooperation and strengthened transportation, transit and communications links across the region. These good resolutions have not been realised. Intra-regional trade and investment remain well below double digit figures, making South Asia the least economically integrated area in the world. South Asian States are connected more to the outside world than to each other.

Why regional cooperation matters

Unhindered regional linkages can help in improving the living conditions of people, especially the most impoverished among them, which is no doubt the most important goal for all South Asian governments. The negative opportunity cost for non-integration of South Asian economies amounts to losing an estimated two per cent of additional GDP growth annually. Integration and connectivity, by permitting economies of scale, have attendant social benefits by promoting growth, and improving public health and environment management. Per capita incomes rise in all integrating regional groupings and SAARC should not have a dissimilar experience.

Regional cooperation can also attenuate inter-state conflicts and raise the threshold below which bilateral relations will not fall. Increasing integration, entailing interweaving interactions and interdependence, based on mutual benefit, will reduce regional tensions, augment India’s leverage vis-à-vis the great powers, and stabilise the region by raising the costs of non-cooperative behaviour.

Initially, SAARC had lukewarm political support and lacked dynamic leadership. Notwithstanding its positive vision, India remained timid in the scope of its ambition and commitments. Progress was achieved in fits and starts, not dissimilar to other similar bodies, in part because regional cooperation, inherently, is a difficult exercise.

The single market in the European Union (EU), was created after a 30-year effort in 1992, when internal barriers to the movement of goods were dismantled and external tariffs were harmonised. The EU is still working on a single market for services and energy, and labour mobility and social welfare payouts for non-nationals are becoming contentious. Within SAARC, the South Asia Free Trade Agreement has an accord on tariffs but the negative lists cover almost half the goods of export interest. Its march towards a customs union might be even more grudging.

The absence of connectivity is another impediment. India and Bangladesh share a land boundary over 4,000 kilometres long, but their trade is mainly conducted by sea. South Asia has no regional production chains, as logistics related trade costs are inordinately high.

The leaders of SAARC must concentrate their efforts on its strategic priorities, instead of spreading cooperation across every aspect of South Asian culture, society and economy. Without losing sight of the longer term goal of achieving a South Asian Union, their focus should be on selecting activities that have the most optimal results in terms of readily accruable mutual benefits. The two core objectives, with significant synergy between them, are promoting freer and more trade and investment, and building connectivity and infrastructure.

What India must do

India must invest in SAARC as Germany did in the EU, through structural funding for infrastructure, and social investment through the Cohesion Fund in order to reduce regional disparities. The distributive element, entailing a larger, immediate pay-off for the weaker economies, would speed integration, in turn adding to regional growth, inward investments and rising incomes and welfare.

Besides these, India-led unilateral, bilateral and sub-regional initiatives could significantly spur regional cooperation. The illustrative examples below could easily be multiplied:

Mr. Modi could build on his resolve, articulated during his last visit to Nepal, to turn the border into a bridge, not a barrier. India could speed initiatives to build gateways for freer movement of goods and peoples.

On hydropower, Nepal declared in 1983 that water resources in the Himalayan watershed “represents one of the world’s last great frontiers of development.” India could take the lead in developing South Asian power trade, which could alter the social and fiscal dynamics of Nepal and contribute to the region’s welfare, besides helping reduce greenhouse gases emissions damaging the Himalayan ecosystem.

If Nepal were to build the Kosi high dam ensuring availability of navigable waters in the channels connecting Nepal to India, India could help unlock Nepal from its landlocked status by gaining access to the Bay of Bengal through India’s national waterway on the Ganga.

India and Bangladesh have agreed already on further measures to facilitate bilateral and third country trade between Bangladesh and Nepal and Bhutan, respectively. India will have to hasten infrastructure building in Bangladesh, focussing on improved energy and transportation connectivity with India.

Afghanistan joined SAARC in 2007 in the hope of becoming a land bridge between Central Asia, South Asia, and the Middle East and a trade, transportation, energy and minerals hub in the region. This idea must be pursued, howsoever difficult it might appear at present.

The shared inheritance of South Asia provides an instinct for comfort and ease of interaction, important but not sufficient factors for promoting regional cooperation. Positive relationships among States require trade and investment, educational, scientific and cultural exchanges, and people-to-people contacts. Since politics cannot really be taken out of any venture between States, they also need an innovative use of diplomacy and statecraft.

India must lift its game for SAARC’s rescue and resuscitation. It must lead by example, building trust with its neighbours, showing solidarity, and forging with them a habit of cooperation. India has the strength to shape regional partnerships that lift neighbouring economies along with its own, not as a symbol of Indian altruism but of its enlightened self-interest. It must help build a regional architecture that creates a congenial space for all its members.

Such a transformation cannot come quickly. It will be conditioned by India’s own growth prospects, and unpredictable circumstances can derail the momentum. It is time, however, for India to take the first determined steps in Kathmandu in the next few days.

(Jayant Prasad is a former diplomat. Currently he is Non-Resident Fellow at the Center for the Advanced Study of India, University of Pennsylvania and Advisor for Foreign Policy Programmes at the Delhi Policy Group.)

Missing links in universal health care

Over 95 per cent of patients coming to super-speciality hospitals are at the wrong place and have incurred hardships when they could have been treated at their neighbourhood primary care centre.

A number of announcements have been made by the Central and State governments on their intent to offer Universal Health Care (UHC). These welcome developments are timely as India is now rapidly becoming one of the few countries that do not seem to have a concrete plan for UHC in place. Even poorer countries such as Ghana, Kyrgyzstan, Rwanda, and Vietnam have now started to make significant progress in this area.

A fact often overlooked in these discussions, however, is that UHC is a complex idea and contains several prerequisites that need to be carefully incorporated into its conceptualisation, design and implementation. This article attempts to outline four of these essential elements.

Providing integrated care

The first, and perhaps the most important, element is the need to distinguish UHC from universally available health insurance. UHC seeks to ensure financial protection with the provision of appropriately priced, high quality, and integrated health care (combining primary, secondary, and tertiary care into a single, patient-centred health-care system). Ideally, financial protection and comprehensive health care are bundled together into an integrated ‘managed care’ proposition where the financial-protector (or the risk-manager) and the provider are a single entity. One of the key benefits of this model is the significant shift in incentives for the health provider — from the current focus on promoting hospitalisation and needless care-procedures, to incentives for promoting health and prevention of illness. Since the provider receives only a fixed amount per year, irrespective of the actual treatment provided, ‘managed care’ places rational treatment and cost-effectiveness at the centre of the model. Because of their very nature, health-care systems owned and financed by ministries of health are ideally suited for offering this type of ‘managed care’. And, if, but only if, there is very strong confidence in the ability of the system to regulate and monitor both patient and provider behaviours as well as population level outcomes, it is possible — as Thailand has done successfully — to invite large non-government players to also bid to provide such ‘managed care’ services. And, while the regulatory challenge in outsourcing ‘managed care’ to the private sector is quite considerable, it is very clear that fragmented health systems with different providers taking care of different parts of the health system, such as the private sector providing hospital-based care and the government focussing on primary care, with patients free to bypass it, is the worst of all possible choices. This fragmentation is the principal reason why a country like the United States finds itself in a situation where insurance premiums and costs of health care are both rising rapidly but population level health indicators are well below those of other comparable countries.

Primary care with gatekeeping

The second element is the need to shift the focus of attention from hospital-based care, to primary care — in terms of financing, development of infrastructure and usage. In order for India to achieve UHC, both in terms of financial feasibility as well as its well-being goals, it is clear that fewer than 2.50 per cent of patients in any given year should need hospital-based care. This implies that 97.5 per cent of all conditions would need to be dealt with at the primary-care level. UHC would therefore need substantial investments at the primary level combined with a strong gatekeeping framework that does not allow patients to seek hospital-based care unless they have been referred by a primary-care provider. It is believed that over 95 per cent of patients who visit tertiary care facilities such as JIPMER in Puducherry and AIIMS in Delhi are at the wrong place and have incurred all the hardship and costs that they did needlessly when they could easily have been cared for locally if good primary care was available. Evidence from Andhra Pradesh also shows that under ‘Arogyasri’, people are overwhelmingly seeking care at hospitals even for conditions which are patently treatable at primary-care facilities. While India undoubtedly needs additional hospital beds to provide adequate coverage even at the 2.50 per cent level mentioned earlier, it is imperative that the focus of immediate attention should not be hospitals or more AIIMS-like centres but well-designed and capable primary-care facilities so that patients can go there directly. Should they inadvertently end up at hospitals for seeking such care, they must be directed back. Only this combination of improved-availability and mandatory-gatekeeping will start to reduce the excess demand for hospital beds even as we gradually seek to address the unmet needs for hospital beds in deficient regions. Otherwise, we run the serious risk of this turning into a vicious cycle of ever increasing demand for hospital beds, further fuelled by an in-patient, insurance-led financial protection strategy, leading eventually to continual and rapid increases in health insurance premiums with no resultant improvements in health outcomes.

Covering everybody

The third key element relates to coverage — any universal health programme would need to include the entire population and not just be targeted at the poor. This is because India has a very steep poverty gradient and single health shocks have the potential to draw entire households back into poverty for all but the very top sliver of the population. For this very reason, globally, citizens of the most developed and several developing nations, who have significantly higher per capita incomes than do even the top percentiles of our population, have also been provided with full access to health care and financial protection. Engagement of the middle class also allows additional resources to be pooled along with tax resources since the amounts that they are currently expending on health care could be included as well. It is clear that development of integrated risk pools and their investment into an integrated UHC framework of the type discussed earlier (as would be implied by grouping the rich and poor together) would allow a significantly higher level of expenditure-volatility compression and the delivery of rational care. This would benefit both segments, with only the resultant net savings to the middle class being used to cross-subsidise the poor. Another benefit of including the middle class is in ensuring accountability of the health system. Being more conscious of its rights and with more resources to participate in the political process, the middle class is better placed to hold the public system accountable to higher quality of care, and perhaps, place health care centrally on political agendas — a feat that the Below Poverty Line (BPL)-targeted Indian health system has not been able to accomplish.

Separating out social determinants

The fourth key element is the urgent need for separation of core health care from extended health care, in a focussed discussion on UHC. While broader social determinants of health (or extended health care) such as provision of clean drinking water, improved sanitation and improved education of girls, have the potential to produce a very big impact on health outcomes, UHC is much more narrowly focussed on what the health-care system itself can provide directly in terms of primary, secondary, and tertiary care (or core health care). The reasons for the desirability of this separation are many and have to do principally with the appropriate allocation of responsibilities and resources. First, these broader determinants, for the most part, fall outside the domain of the ministries of health. Second, in India, the resources currently allocated for health care by the government have to go up three times, from 1 per cent to 3 per cent of GDP even to provide the essential elements of core health care at a reasonable level of quality and availability. Provision of extended health care would need a much larger level of resource allocation and would perforce have to be included in the domain of other ministries. And, finally, the benefits that accrue from extended health care go well beyond health (for example, time savings account for over 70 per cent of the benefits of home-delivered, clean drinking water and are not necessarily the most cost-effective interventions if viewed only from the narrow lens of health care.

There are a number of very important challenges that we face as a country. It is important to ensure that we are focussed on solving those using strong evidence-based strategies and with a very sharp sense of focus. Offering UHC to all our citizens is one such challenge. Here we need to be careful that we use the limited resources we have at our disposal in the most effective way, even if it means that some very important ideas need to be revisited or deferred for the time being.

(Nachiket Mor and Anuska Kalita are with the IKP Trust. The views expressed are entirely personal.)

‘Merit-based civil service will boost growth’

It will take India a decade to reach Asian average on govt. effectiveness: Goldman Sachs report

Investment bank Goldman Sachs has estimated that civil service reforms that include a bureaucracy that is merit-based rather than seniority-based, could add nearly a percentage point annually to India’s per capita growth, which stood at 3.4 per cent last year.

The report reiterates recommendations from the Administrative Reforms Commission (ARC) such as reduction in the age for entry and the number of attempts allowed for civil service aspirants, and encouraging lateral entry of technocrats from the private sector. “We estimate that if India were to pursue civil service reforms and reach the Asian average on government effectiveness, it could add 0.9 percentage points annually to per capita GDP... Institutional quality is a crucial driver of economic performance.”

Reforms will ensure younger officers

Goldman Sachs in its report on civil service reforms in India has compiled drivers of effective civil service in other countries. Singapore promotes officers solely on merit and Malaysia has recently put in place a new performance appraisal and remuneration system for promotion and salary hikes. In Japan, supervisors, peers and juniors appraise civil servants for merit ratings. India is one of a very few countries where the annual salary of civil servants is not based on performance.

For example, of the five Secretaries in the Finance Ministry, the senior-most in terms of the year of entry into service usually becomes the Finance Secretary.

Even though the median age in India is 26, due to seniority being the main criterion for promotion, the highest ranking civil servant in each ministry is usually in his/her late 50s and early 60s and only a few years away from retirement. By contrast, the average age of senior bureaucrats in the U.S. and China is 54 years to 55 years. In Singapore it is 52 and in the UK it is about 53 years.

To arrive at its estimation, Goldman Sachs used the World Bank’s latest Worldwide Governance Indicators (WGI) data released in September. India’s WGI ranking deteriorated from 55th percentile in 2004 to the 47th percentile in 2013. WGIs report six dimensions of governance over the period 1996-2013 for 215 countries. These are largely on the quality and implementation capacity of the civil service.

India’s growth could increase by 0.28 percentage points for every one index point change in effectiveness of government, according to the Goldman Sachs results.

Keywords: civil service reforms, merit-based bureaucracy, Goldman Sachs