Chattisgarh Delegation Visits MGP

Fifty people's representatives and officers of various local bodies in Chattisgarh state visted Mysore Grahakara Parishat office in two batches on 18-8-09 and 25-8-09. They interacted with MGP members on civic and consumer issues. They were given a demonstration about how various foods are adulterated and how one can detect such adulteration.

The Chattisgarh delegation was accompanied by Prof. V. Jagannath, HUDCO professor at State Institute of Urban Development. MGP members who interacted with the delgation included Dr. Bhamy V. Shenoy, C.V. Nagaraj, Dr. T.N. Manjunath, B.Vaikunth Shenoy, P.M. Bhat, Maj. Gen. (Rtd.) S.G. Vombatkere, Asha Vombatkere, Sreemathi Hariprasad and V.Gurusankar.

D V Dayanand Sagar, Member, MGP

A Shocking Decision By The Supreme Court

A shocking decision by the Supreme Court in which it has termed a provision of law as legal fiction and disregarded it has been reported recently (III (2009) CPJ 2 (SC)).

Abhilash Jewellery is a jewelry shop in Thrisur district of Kerala. It had bought insurance from New India Assurance Company for Rs. 1.15 crores. When the policy was in effect, 588 gms. of gold was stolen from the shop. When the shop filed the insurance claim, it was rejected for the reason that the stolen gold was in the custody of an apprentice. One of the conditions of the policy was that insurance would be paid if the gold was in custody of an employee. The insurance company said that an apprentice is not an employee and so refused to pay the insured amount.

The jewelry shop filed a complaint before the National Consumer Commission arguing that under Sec. 2(6) of the Kerala Shops and Commercial Establishments Act, an apprentice is also an employee. The same interpretation appears in many other statutes also. The National Commission agreed with this argument and ordered the insurance company to pay up.

The insurance company appealed to the Supreme Court against this decision. The Supreme Court reversed the order of the National Commission saying: "The contract of insurance no doubt uses the word 'employee', but it does not say that the word 'employee' in the contract of insurance will have the same meaning as in the Kerala Shops and Commercial Establishments Act or the Employees State Insurance Act or any other enactment. In various enactments, the word 'employee' has no doubt, been defined to include an apprentice, but that is only a deeming provision and a legal fiction by which the word 'employee' has been extended. Legal fictions are well-known in law. For example, Section 43(3) of the Income Tax Act defines "plant' to include a book. Ordinarily, a plant means a factory, and by no stretch of the imagination can we call a factory a book. However, the Income Tax Act deems a book to be a plant for the purpose of depreciation. Many such illustrations of deeming clauses or legal fictions can be given. The definition of an employee in various enactments which include an apprentice within the ambit of the definition is such a piece of legal fiction. That however does not mean that an apprentice is an employee. In the present case, since the word 'employee' has not been defined in the contract of insurance, we have to give it the meaning which it has in common parlance. In common parlance, an apprentice is a trainee and not an employee."

There are some serious problems with the decision of the Supreme Court:

1. The Court has said that in common parlance, an apprentice is a trainee and not an employee. What is "common parlance"? Do people commonly know that an apprentice is a trainee and not an employee? The answer must be no. Then how do we find out the common usage of the word? The Oxford Dictionary, reputedly the most authoritative of all dictionaries, merely says that an apprentice is a person learning a skilled practical trade from an employer. But it does not definitely say that he is not an employee. What are we to do now? Shall we look the word up in the internet? According to the internet, an apprentice is considered an employee in America, England, Australia, etc. Then, is this not the meaning of "apprentice' in common usage?

2. Plain Meaning Rule is a principle used by courts. According to it, if a word used in a document is not defined in that document or in a related law, it should be given its plain meaning. In the present case, the word 'employee' may not be defined in the insurance contract, but according to the relevant laws, it is clear that an apprentice is also an employee. So there is no need to invoke the plain meaning rule for the word 'employee'.

3. It appears that the Court is not interpreting the phrase 'Legal Fiction' correctly. The procedural device used by courts when justice is not being done due to a defect in the law is called legal fiction. One example. In olden days one could only sue persons. In those days, when a company cheated a person, he could not, under the laws extant, file a case against the company. Realizing that this was unjust, courts delivered justice by creating a legal fiction that a company was a person for the purpose of law. (Nowadays, laws include companies in the definition of the word 'person'. So there is no need for the courts to resort to legal fiction in the matter of companies.) But when the law clearly says that an apprentice is an employee, the courts can not go against it.

4. If all courts disregard what is clearly spelt out in a law calling it legal fiction, then all laws become meaningless. Our Constitution reserves the power to make laws to the legislature. Judiciary can not exercise that power. The Supreme Court itself has repeatedly held that, in interpreting a law, no violence must be done to the language and the intention of the law. The order of the Court in dismissing Sec. 2(6) of the Kerala Shops and Commercial Establishments Act defining an apprentice to be an employee as a legal fiction violates these earlier orders.

Prof. S.K. Ananda Thirtha, Member, Mysore Grahakara Parishat

Electricity - Charging More For Less Quality And Quantity

The five electricity supply companies (ESCOMs) in Karnataka have applied for yet another increase in tariff. The quality of power supply is steeply deteriorating with severe load-shedding, frequent interruptions and voltage fluctuations, but the ESCOMs keep asking for higher tariffs at every opportunity. As a result, the electricity tariff has increased by 60% in the last 9 years in Karnataka.

The gap between cost and quality of electricity in Karnataka has caused so much damage to the economy of the state that Federation of Karnataka Chambers of Commerce and Industry (FKCCI) has filed a petition before Karnataka Electricity Regulatory Commission seeking the cancellation of license to the five ESCOMs.

Indian Electricity Act 2003 and Karnataka Electricity Reforms Act 1999, which govern the electricity industry in Karnataka, emphasize 'promotion of competition, efficiency and economy', 'economical use of the resources', 'optimum investments', 'interests of the consumers' and 'commercial principles'. These Acts and the National Electricity Policy stress on providing reliable power of specified quality standards in an efficient manner and at reasonable rates for protecting the consumer interests and the environment. If one looks at the history of ESCOMs in the state, it is clear that we are not getting close to these goals.

IE Act mandates that power supply shall not be given to installations without accurate metering. But none of the ESCOMs has ensured accurate metering for all installations.

KER Act stipulates that the tariffs progressively reflect the cost of supply of electricity at an adequate and improving level of efficiency. This goal is still unrealized.

These Acts clearly expect that the cross-subsidy from one class of consumers to another should be eliminated early. But the subsidy by the state government and the cross-subsidy by commercial and industrial consumers are continuing.

'Promotion of competition,efficiency and economy' is not happening as evident by the huge aggregate technical and commercial losses in the state, estimated to be about 30% against best practice of less of than 10%. The overall efficiency of the ESCOMs is amongst the lowest in the world.

Protecting consumer interests and the environment appear to be of very low priority. The number of consumer complaints is steeply increasing and the abuse of nature is unabated in the form additional coal-based and dam-based power stations being planned to mask the huge inefficiency in the industry.

Despite such inefficiency, unaccountability and noncompliance with the directions of the IE Act, it is amazing that the ESCOMs are still in business. The only way things will improve is if the consumers rise up in large number to oppose the tariff increase before KERC or if KERC rules in favour of the FKCCI petition. The last day for consumers to submit their objections to the Chescorp rate hike is Sept. 14.

Shankar Sharma, Member, Mysore Grahakara Parishat

Rubber Tube Patches are No Way to Safeguard Water Qualilty

I recently saw a trench being dug to repair a leak in an underground water main in Yadavagiri. When I peeked in the trench, I saw that a hole in the main had been repaired by wrapping cycle tube rubber strips around the hole. It is learnt that this is the standard way to repair underground water mains and connect two pipe sections.

It is obvious that such repairs are shoddy and unacceptable from the public health point of view. Water will leak during high pressure periods (as it is doing in the photo) and water outside the pipe will be sucked in during negative pressure periods, contaminating the whole water supply. Over a relatively short period of time, the rubber will disintegrate completely and one will have to dig again and repair again.

The correct way to repair is by welding which will make the joints watertight and long-lasting. It is high time that VVWW gives its workers welding equipment and trains them to use it.

B.Vaikunth Shenoy, Member, Mysore Grahakara Parishat

Unique Identification of Indian Citizens

The scheme

The Unique Identification Authority of India (UIA) formed in February 2009 is set to provide a unique number to all Indian citizens by 2011, at a cost presently estimated between Rs.30,000 to Rs.150,000 crores, with initial budgeted outlay of Rs.100 crores for the current year. It is expected to create 100,000 new jobs and business worth Rs.6,500 crores. UIA will create and operate a database to create a Multi-purpose National Identity Card for all citizens over 18 years of age, with a unique number along with photographs and biometric data. It will link together various existing identity databases like passports, ration cards, licences and border area ID cards, to empower poor people by reducing or eliminating the need for them to bribe corrupt officials, and also address the widespread corruption in provision of subsidies and poverty alleviation programs like the NREG scheme, and check illegal immigration and terrorist threats. It is understood that providing smart cards is not included in the UI scheme, and that though obtaining the UI will not be mandatory, lack of UI may result in denial of facilities that call for it.

While any task is open to improvement, and it is not the present writer’s intention to belittle the efforts of government to create a database that will be of future value, it is well to address what may be the practical difficulties based upon known circumstances and facts, especially in rural areas.

Data acquisition

The scope of the UI scheme appears to be substantially much wider than any existing database such as passport, ration card, Electors Photo Identity Card (EPIC), etc. The target date of 2011 leaves only 29 months to formulate the scheme, create the personnel infrastructure, acquire data, perform data entry and validation, and put the database into operation. Obviously the system will be of use only with periodic updating continuously into the future, for which permanent systems will have to be set up starting with the immediately created personnel infrastructure. Updating involves continually obtaining raw data of people as they attain the age of 18 years and deleting the UI of persons who die, migrate or emigrate. While the number of data records involved in the updating process will be enormous, the creation of the initial database is monumental and is itself a moving target, since about 50,000 people cross Age-18 every day. At present, persons above 18 years of age number over 700 million, and would have increased by around 40 million by 2011.

Besides its design, the validity of a database scheme depends upon the accuracy or reliability of information, the speed with which it is acquired, and the rate and periodicity at which update information arrives. Personal raw data (photograph, demographic, biometric, links with other databases, etc.) has to be acquired by some person at the ground level by actual contact with individuals. The experience with provision of EPICs ordered by the Election Commission of India (ECI) is well known. The data needed for EPICs is limited; photograph, name, sex, date of birth, and address. Even with this limited data, large numbers of EPICs are known to be erroneous (with serious errors especially in sex and age, and photographs of very poor quality) primarily because of careless data entry by hired personnel of the contracted agency, which made the excuse of illegible raw data provided by the electors.

Biometric data for the UI database would perhaps be height, colour of eyes, fingerprints and blood group. To acquire this data, actual measurement of height, noting eye-colour and testing for blood-group would have to be made, since ration cards do not carry these details and the percentage of Indians who have passports is negligible. Thus, besides identifying individuals correctly before acquiring their biometric data, the accuracy and reliability of this data of people who live in accessible and interior villages (where over 60% of Indians live) would be heavily dependent upon the training and sincerity of persons who are appointed to go to the people to record it. There is virtually no accountability of the enumerators for the accuracy or reliability of the data acquired especially since, with a deadline of 2011, they are likely to rush to provide the volume of raw data called for by the UI Authority. Finally, the UI Authority will have no means of verifying the accuracy of the raw data flowing in from distant locations all over the country. Even if spot checking is done and errors detected, correction will be a challenging task. Thus the value of the UI database can be seriously compromised.

Collection of raw data could be delegated to the existing official administrative infrastructure. For elections or census, teachers and other government officials are made to carry out enumeration, to the neglect of their routine duties. But whether the UI Authority uses the existing official administrative infrastructure or outsources the work to contractors for enumeration (creation of 100,000 jobs and Rs.6,500 crores business), the common denominator is likely to be the validity of the incoming data.

Logistics and cost

The logistics of biometric data acquisition are enormous. The logistics that the ECI mobilizes for elections is huge and is done only when elections are due, but the UI Authority’s logistic needs would be continuous and on-going even beyond the target of 2011 set for database creation. The financial cost of upto Rs.150,000 crores may be accepted by Parliament, but the benefits of creation and maintenance of the database may also need to be quantified, howsoever approximately.

Rights issues

Obtaining the UI Number is not mandatory. Thus people who would want the UI Number but to whom there is little access because of living in remote areas, and people who are absent from their home when the enumerator visits would not be blamed. But such people and also genuine citizens who exercise their right not to obtain a UI Number will inevitably be confused with people who do not want to be identified either because they are illegal immigrants from neighbouring countries or because they have nefarious or anti-national aims. Such inevitable confusion would make genuine citizens without UI Numbers targets for police or other checks, and consequent loss of rights. At the same time, making UI Number mandatory may bring up constitutional issues because of the State assuming the restrictive role of “Big Brother” that limits or restricts individual freedoms. Therefore the concept of UI Number is one that perhaps calls for urgent legal discussion.

Conclusion

Government of India has created the UI Authority in February 2009 with laudable aims. However, the information placed in the public domain is negligible. The entire issue demands more transparency and public debate, and should not become yet another scheme created by the bureaucratic mindset that fails to deliver planned results, especially with the huge outlays suggested.

By Dr.S.G.Vombatkere

Dr.S G Vombatkere is the President of Mysore Grahakara Parishat