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2019

All articles of law create obligations and impose restraints on government action. Laws that govern economic activity, for example, limit business entry and exit, product price and quality, whereas social laws alter individual or organisational behaviour. The process through which rules are drafted and enacted, the authorisation to state action that rules provide and the constraints on private action that rules sanction have a bearing on enterprises and every day living.

This paper, the second in our series of papers on the state of regulatory quality in India, provides a simplified guidepost to improve regulatory hygiene in India. We outline benchmarks to guide rule-making and establish checks on government action.

Through an extensive literature review, we identified practices that must be encoded into the rulemaking process. These are categorised under three heads:

  • Democratic Safeguards are procedural checks that help ensure a participatory, transparent and accountable rulemaking process. Ex-ante, this involves increasing public access to the rule-set (including accessibility in terms of language), a serious consideration of stakeholder views and a rigorous assessment of the costs and benefits. Ex-post, this involves a review to assess the validity, cost-effectiveness and efficiency of the legislation.
    Use of tools throughout the lifecycle of a regulation, from drafting to sunset, allows a rule-making body to manage the flow and stock of regulation. We find that countries like Sweden, United Kingdom and Australia use different mechanisms to ensure that the interests of the affected parties and the public at large are heard and honoured by decision-makers.

  • Legal Safeguards are checks on executive discretion. While executive discretion is inevitable, it ought not to be unguided and uncontrolled. There is a thin line between discretionary powers and the arbitrary exercise of powers. Rule of law demands that the executive ought to operate within a constraining framework that provides express legal authorisation to and procedural checks against excesses.
    In particular, procedural checks ought to be placed on the rule-making (quasi-legislative) and decision-making (quasi-judicial) functions of the executive - both of which affect the rights and duties of the regulatees. In the United States, for instance, the Administrative Procedure Act provides standards to guide administrative action and encodes the duties of procedural propriety in law.

  • Economic Safeguards are substantive checks on the way a rule-set impacts economic freedom. Rules that regulate economic activity are guided by consideration for both market participants: enterprises and consumers. While India is influenced by different frameworks including World Bank’s Doing Business in carrying out economic reforms, it lacks a lucid and explicit regulatory philosophy of its own to guide economic laws.
    Most high-income countries such as Hong Kong and the United States share certain features and values that guide their economic laws. This includes a high degree of openness (allowing for easy entry and exit for firms), low economic burden, increased competition, an enabling environment for the private sector and greater consumer choice.

Drawing from global best practices and indices around the world, we propose a check-list (for primary acts) to measure the quality of rules currently on the books in India. The check-list is a set of distilled minimums based on these three safeguards, that any rule-set ought to conform to. These do not apply to any one department, regulator or agency but to all.

A check-list approach to evaluate laws currently on the books will help diagnose the distance individual rule-sets have to cover, along with guiding future law-making. While there have been efforts in India to evaluate the impact of single rules, little attention has been paid to a comprehensive evaluation of all regulations, across industries over a period of time to assess the cumulative cost of regulation.

High-performing countries persistently strive to introduce such institutions and mechanisms to create a transparent, answerable and accountable government. To build a well-functioning and non-intrusive regulatory regime we in India need to similarly introduce a ‘set of institutions and processes that embed regulatory review mechanisms into the every-day routines of governmental policy-making’ (Morgan 1999: 50). In sum, what we need is a whole-of-government approach for regulation of regulation.

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2019

The Street Vendors Act 2014 mandates the formation of town vending committees (TVC) to survey all local street vendors at least once every five years. Until a survey is complete, no street vendor is to be evicted. In this attached study, we document how street vendors were enumerated in Gurugram, Haryana.

Multiple surveys, varying methods

In the span of seven years, six private agencies have been contracted by different government departments at the municipal and state level. These agencies carried out surveys using varying methods and each reported different number and category of vendors (Figure 1). Despite multiple attempts, it is not clear if and how the agencies adhered to the Central Act and state guidelines. There also seems to be a lack of thorough and careful evaluation, by the local authority, of the work carried out by the private agencies.

Timeline of surveys in Gurugram
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Figure 1: Timeline of surveys in Gurugram

Contracted agencies used different survey practices

To understand the enumeration mechanisms adopted by different agencies, we interviewed two agencies, Egmac Capital and REPL. The former was contracted under the local authority and surveyed sector 10A and 56, the latter was contracted by the state government and surveyed the whole of Gurugram.

While Egmac Capital carried out a survey using physical forms, REPL used an app called the REPL Survey. The application allowed the agency to geotag the individual vending spot of all vendors. Figure 2 lists the differences in practices followed by the two agencies.

Comparative analysis of survey practices adopted by two agencies
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Figure 2: Comparative analysis of survey practices adopted by two agencies

Critical gaps in vendor enumeration practices in Gurugram

Surveys are not all-inclusive: Barely a third of the vendors we interviewed (11 out of 30) were surveyed under any of the survey exercises. Even in designated vending zones, vendors remain uncounted. None of these vendors could confidently declare who their surveyor was.

Local authority reigns supreme: The Act is clear on two aspects: first, the final decision on vending zones will be made by the local authority in consultation with the TVCs, and two, the scheme has to provide for the conditions and principles of demarcating vending and no-vending zones. Haryana fails on both aspects: the local authority decides and then declares its decision to the TVC, and there is no notified scheme.

Misaligned Incentives: The TVC meeting minutes, from 25 January 2017, highlight that one of the agencies underreported the number of vendors to evade paying the Municipal Corporation of Gurugram (MCG) its share in the fees collected from vendors. In another instance, the state government paid REPL on a per vendor basis. While the first instance creates incentives for the agency to underreport, a per-vendor payment system may create perverse incentives to overreport the number of vendors.

Survey complete without a scheme. What next?

There remain many implementation gaps. Haryana, for example, has not drafted the scheme, as required under the Street Vendors Act 2014. The state government and the MCG carried our surveys, through private agencies, in the absence of a scheme. Further, the scope and results of the agencies differed significantly making comparisons or creation of a unified dataset of vendors difficult.

The survey reports of all the agencies are stuck with the local authority and TVC. Complaints to the MCG by the vendors and the private agencies go unheard. Currently, the only avenue to express concerns, the TVC, has not conducted any meeting since 21 August 2018.

Gurugram’s model of contracting out vendor enumeration to private agencies may be desirable given constraints on state capacity. However, without clear objectives and rigorous evaluation of work, we are left with less than perfect outcomes.

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2019

Regulation takes different forms in India. There are ordinances and statutes by the parliament or state legislatures; rules, circulars, orders, and schemes by executive agencies; and orders by the courts. As is commonly known, rule-making in our country is disorganised with new rules added on the fly, without review of existing regulation. The public consultations are rarely transparent. Consideration for costs and benefits, compliance burden, or regulatory coherence is a rare phenomenon. Our latest paper titled ‘How does India fare on Regulatory Hygiene’ is the first in a series of papers that will capture the lack of quality of regulation in India and suggest reforms. In this paper, particularly, we lay out India’s performance on global best practices on rule-making hygiene. Below is a summary of the findings.

Why should India care about regulatory hygiene?

India scored 3.5 out of 5 on the World Bank’s Global Indicators of Regulatory Governance (GIRG). Not surprisingly, a country’s performance on GIRG is closely tied to the Bank’s Doing Business rankings. 43 out of the top 50 countries in the doing business rankings score substantially higher than India on GIRG. These countries mandate rigorous measurement of regulatory costs and benefits, conduct public consultations, and periodic fitness check of rules on the books.

We argue that our aspiration to enter the ranks of top 50 on World Bank’s Doing Business index will only come once we move up on the governance reforms and institutionalise hygiene in our rulemaking process.

How does India fare on Regulatory Hygiene?

We examine how India performs on 5 parameters of regulatory hygiene:

  • Impact Assessment: Government of India and state governments do not measure the potential impact of regulations on entrepreneurs, enterprises or consumers. In the absence of ex-ante impact assessment, the government relies on anecdotes or lobbying, resulting in lopsided or reactive regulatory responses. Despite recommendations by multiple committees and a policy on pre-legislative impact assessment and consultation, government agencies do not conduct impact assessments.
  • Public Consultations: In India, there is no law that binds the government to consult the public before the enactment of a law, publish comments, or report the results of the consultation. As a consequence, the practice of soliciting comments and reporting on the results of public consultation is largely superficial. Only select ministries report on the results of consultation.
  • Language of drafting laws: India has, unfortunately, remained untouched by the plain English movement, initiated in several other parts of the world. The movement emphasises on simplifying language, decreasing complexity of laws, and consequently increasing their accessibility. Aside from a select few instances such as the ‘plain and simple’ technique of Indian Financial Code, most laws remain difficult to understand and out of reach for a majority of the population.
  • Ex-post review: An ex-post review ensures that any rule-set, after enactment, remains fit for purpose, cost-effective, and efficient. The GIRG asks four questions on post-legislative reviews, and India’s response to all is ‘NO’. India has currently over 850 Acts at the central level alone, many of which are redundant or archaic. Over the last five years, the union government has repealed 1,428 central Acts. While these initiative to repeal is a positive development, it is necessary that we put in measures to ensure that every Act, by design, is reviewed at a scheduled interval for its intended and unintended consequences.
  • Oversight on subordinate legislation: Most central and state acts subordinate rulemaking to the executive body, i.e., the state or central government. Through the use of judicial scrutiny, public consultations, and parliamentary reviews, the state ensures that delegated legislation does not exceed the scope of the parent Act. If this scrutiny on delegated powers is compromised, the doctrine of separation of powers between the executive, parliament and legislature that ensures that no one branch holds excessive power, is compromised.

While the Supreme Court of India has argued that the parliament maintains ‘strict vigilance and control’ over delegated legislation, research reveals that parliamentary control of delegated legislation is weak.

As evident from the lack of method in our rule-making apparatus, we are not prepared to cope with the demands of a fast-growing, largely informal and diverse enterprise environment. The political class and bureaucrats continue to favor minor tweaks as opposed to substantive reforms in the rulemaking process.

The convening of the Better Regulation Advisory Group by the Department of Industrial Policy & Promotion in February 2018 offered hope. The group was to report its findings within two weeks. However, one year and 10 months later, the findings of the committee are not published.

The ambitious goal of becoming a $5 trillion economy by 2025 can only be realised if the gaps in the rulemaking process are addressed. The approach of one good law at a time is no longer sufficient. The system should be redesigned such that every rule on the law book meets its objectives in the least harmful manner.

The paper will be published in the forthcoming issue of the Journal of Indian Law and Society.

2019

The report argues that street vendors who are expressly recognised and protected by the Street Vendors Act 2014 continue to be stigmatized as “encroachers” and face the usual official and unofficial consequences including extortion, harassment and evictions. State apparatus has not fully implemented the law in most states. Moreover, by evicting the vendors and creating novending zones before enumeration, state authorities as well as local administrations have been in clear conflict with the law. Unfortunately, the courts have mostly sided with the government and upheld evictions.

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2019

Street vending is typically self-regulated by informal but codified norms of space allocation. Vendors, in most cases, allocate/occupy spots based on the rule of first possession. Kettles (2006) argues self-regulation brings efficiency and reduces conflicts through the identification of “valuable” revenue-generating vending sites. For the administration, such self-regulation reduces the burden to identify and allocate vending spots. More importantly, formalising existing informal practices increases compliance, reducing the need for enforcement.

In this article, we deal with a question central to urban planning: How should the Indian government, in light of Street Vendors Act 2014, formalise and allocate of rights to public spaces?

Recap of Street Vendors Act 2014

The Street Vendors Act 2014 seeks to formalize the existing space allocation to a great extent instead of allocating de novo. It attempts to formalize all existing vendors and prohibits declaring existing natural markets into no-vending zones. The Act necessitates the formation of a local governance body, called the Town Vending Committee (TVC), responsible for the regulation of vendors. The Committee is mandated to survey all vendors and issue Certificates of Vending (CoV) to all identified vendors.

The central problem is ultimately determining a method to the madness around the use of public spaces such that interests of all parties, especially vendors, are met. Put another way, this requires some process to determine and assign user rights to vendors.

Formalising vendors will require formalising usufructuary vending rights

The Act approaches the question of assigning property rights, particularly user rights to a particular spot, to vendors in conflicting terms. On the one hand, Section 29(1) expressly declares that the Act confers no “temporary, permanent or perpetual right of carrying out vending activities in the vending zones allotted to him or in respect of any place on which he carries on such vending activity.”

On the other hand, section 5(1)(c), for example, mentions a condition of non-transferability for issuance of CoV. This condition prohibits the transfer of CoV, rent or even the place specified in the CoV to any other person. It implies, place of vending is ‘specific’ and it is to be specified in the CoV.

Three aspects of implementation require careful attention

First, while the Act protects existing vendors by requiring local governments to accommodate them until the upper limit of 2.5% of the local population is reached, it leaves the determination of holding capacity, applicable to new vendors, to the local authority. The principles the state government lays out in determining the formula for calculating holding capacity will determine how inclusive or accommodative the local government will be of new vendors.

Second, if the demand for CoV from existing vendors and new applicants exceeds the holding capacity, the Act suggests carrying out a draw of lots. While section 4(3) of the Act seems to equate existing and new vendors, we recommend prioritising existing vendors over new applicants. The manner in which state governments balance the demands of existing and new applicants, especially when it exceeds holding capacity and 2.5% of the population, have implications on vendor livelihoods and urban space management.

Third, the Act is ambiguous on whether or not to assign property rights to a specific spot to a vendor. There may be different ways to approach this: allocation of exclusive rights to a site to the vendor, allocation on the time-sharing basis (in a day, month, or season) or allocation of an area without specifying the vending site. Each of these policy choices has pros and cons, and has a bearing on the degree of vendor formalisation.

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2019

Editor’s Note: The authors published a much more extensive report on the Street Vendors Act of 2014 titled “Progress Report: Implementing the Street Vendors Act 2014”available on Centre for Civil Society’s website at https://tinyurl.com/y4bywn6o. For more information about Centre for Civil Society, please visit their main website at https://www.ccs.in/.

Street vending is a source of livelihood for many urban poor, and of affordable and essential goods to the public. In India, stories of vendor harassment by the local administration as well as the police are ubiquitous. It appears to be less about vendor rights and more about the power that different actors exercise over public spaces.

One must look at the process whereby a new hawker enters the trade . . . Then starts the bargain with the local policeman, the municipal recovery inspector, the influential (known) hawker-cum-leader and even the local goon for permission to engage in hawking activity at a particular location . . . A similar negotiation takes place for erecting a hut in a slum locality…payment to be made to the slumlord (a volunteer of some political party)…expected to be a part of the vote bank of the concerned political party. Subsequent hafta payments continue unless the hawker becomes politically active, or joins the local mafia . . .(note 1)

There are several issues at the heart of the street vending debate and assigning rights over the use of public space is the most contentious. A vendor’s right to occupation, for example, conflicts with commuters’ rights to move freely. The central policy problem is managing such conflicting and competing interests of vendors, pavement users, local residents, vehicular traffic and urban space managers.

NOTES

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2019

Separation of Powers is one of the foremost principles of good governance, and states that the rule-maker, rule-executor and adjudicator should be distinct from each other. Such a separation installs checks against conflicts of interest and abuse of power by regulatory authorities and increases institutional accountability for outcomes.

We need to separate the functions exercised in governing the school education sector of India, particularly at the state level. A state government's Education Department is responsible for the construction of schools, teacher hiring and management, distribution of funds for school activities and formulation of state-level education policy.

The blueprint identifies three key-problems with the current governance structure:

  • Violation of natural justice;
  • Ineffective performance monitoring and rule compliance; and
  • Differential laws for government and private schools.

To address these three problems, the blueprint proposes separating the functions of service-delivery, assessment of learning outcomes, and adjudication of disputes (from the state departments of education) into three independent bodies.

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2019

Prior to the passage of the Right to Education (RTE) Act 2009, government registration or recognition of private schools was not mandatory in most Indian states. The Act has drawn heavy criticism for its impact on recognised and unrecognised private schools across India. Its uniform input-oriented regulatory approach does not pay attention to the fact that children from all socioeconomic classes attend private schools. Application of uniform principles to all schools, irrespective of the fee charged, ignores the costs of compliance with the mandated input norms, and the implicit penalty imposed on low-income parents. Worst of all, the enforcement of the Act threatens to shut down well-performing schools who may not have the means to comply with input norms.

Nearly 10 years after the passage of the Act, we are yet to have credible estimates from the government on the regulatory impact of RTE, particularly on children attending low-fee private schools.

Against this backdrop, the report provides estimates on the extent of school closures as a result of enforcing private school recognition norms prescribed under RTE.

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2019

The debate on low learning levels has spurred several actions by the state. India has enrolled to participate in the 2021 round of PISA. The NCERT has defined grade level learning outcomes for languages (Hindi, English, Urdu), mathematics, environmental studies, science and social science up to the elementary stage. NITI Aayog is developing an index to `institutionalise the focus on improving education outcomes' including learning, equity and access based on information generated by NAS, the largest national assessment survey in the country. NAS coverage has been expanded to include government-aided schools and the sampling unit is changed from state to district level. The moot question is: Are these reforms sufficient to bring improvement across schools or are we still just tinkering at the edges?

Taking note of the crisis and recent developments, this brief urges the government to use the power of information to strengthen its ability to hold individual schools accountable, parents' ability to choose, and schools' ability to improve.

For more information on the project, to share your feedback or to get involved, get in touch with us at research_feedback@ccs.in.

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2019

An estimated one crore people in India rely on street vending for their livelihoods, supplying affordable and essential goods to the public and contributing directly to economic growth. However, they operate in public spaces over which different stakeholders claim contrasting and competing interests. In addition, a lack of clarity on their rights encourages informal governance and allows local authorities to benefit from flourishing channels of rent-seeking.

The Central Government, in a landmark event, enacted the Street Vendors Act 2014 with the objective of protecting and regulating the street vendors of the country. The Act mandates states to create rules, schemes and local governance structures, in consonance with the spirit of the Central Act, to legitimize the rights of vendors.

This report evaluates the progress made in institutionalizing mechanisms to protect and regulate vending since the past four years. There are three parts to the report: a look at the interpretation of the Act by the Higher Courts, a statistical capture of the progress by states in implementing the Act, and a case study of two urban cities to explore how the new Act is reshaping urban space management.

Through an analysis of 57 court judgements, RTI responses on 11 questions from 30 states, and review of orders and meeting minutes of 2 Town Vending Committees, we found that the Act notwithstanding, vendors continue to be excluded from critical urban space management decisions. Four years after enactment, progress across the board on implementing the mandate of the Act is sluggish.

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