Saturday, October 17, 2015

My unease with the NJAC judgement

I type this as I am watching the news of the Supreme Court striking down the NJAC enacted by parliament. Following current events with knowledge of elementary civics since many many years, I am slightly more informed than most even if this is a self-assessment and this self-assessment may not pass the pomposity testrder on.

Now I might be in a minority in my views but I do  think that this is a judgement which has far reaching consequences which might conflict with our democracy.  Whether it is correct/legal or not can be better opinioned by experts in this field and I cannot claim to be one. But I can claim to have some  amount of common sense and at the end of the day, law is largely common sense. There are some aspects which are slightly more complex than can be  obtained by common sense but this can easily be understood by  some reading on the subject.
As was remarked in an earlier blog entry, democracy has 3 + pillars:
-          The legislature – who make laws
-          The executive who administer the laws
-          The judiciary who interpret the laws and protect the rights of citizens and the constitution on which our society is based.

No one organ is above the other and these pillars are like a three legged table. If any one leg is of unequal length, the stability of the table is affected. This is the exact situation we are in today.

For a little historic perspective in a highly compressed form:

In the 60s and 70s, the governments of the day were very strong along with a strong backing of a strong legislature. This made pushing laws quite easy. The judiciary abrogated it role of protecting the rights of citizens during the emergency, for example by ruling that fundamental rights were not so fundamental during an emergency.  A strong prime  minister then ensured that the judiciary remained sympathetic to the government cause and there was a clear executive interference in the judiciary and which compromised the integrity .  Post emergency saw a resurgent judiciary determined to regain lost ground. It would take volumes to  explain this in detail but the resurgent judiciary along with weak collation governments and a fractured parliament saw what is called “judicial over reach”.

One milestone was ruling about the basic structure of the constitution. While this cannot be explained in brief, the basic points that arose was:
1         Parliament was a creation of the constitution and could not do anything to alter the “basic structure of the constitution”
2         The supreme court was  the final authority on deciding what was the basic structure of the constitution.

Another milestone was changing the method of appointment of judges. Till then, Supreme court and High Court judges were selected by the executive in “consultation” with the chief justice of India. In the name of judicial independence and interpretation of “conulatation”,  the supreme court changed the system  and took over the role of appointment of judges and made a system of collegium. The collegium has no basis in law nor the constitution and this in my opinion was a  case of overreach.

Another  milestone was the concept of Public Interest litigations.  The intent was a noble one and was meant to protect the rights  of undertrials and that section of society which was not aware of their rights nor had the means to protect the same. The PIL allowed not stake holders to file cases. More on this a few paragraphs later.

What Changed:
Subsequently weaker governments and a lack of accountability from the judiciary saw a lop sided situation in our democracy. The system of judges appointing judges remained unprecedented and is unique to India. As has been widely reported there is no country in the world with such a system. The NJAC was an attempt to restore some balance by making the executive a stakeholder in the judicial appointment process.
Now the constitution has placed law making the prerogative of the legislature.  Parliament is accountable to the people who have voted them and it has to be assumed that they reflect the will of the people.  While this might be not be realistically true on many occasions, we have to go with this assumption or acknowledge that democracy has failed .  The role of the judiciary viz a viz laws  is to check whether laws are in line with the constitution and they cannot get into either the law making process or policy/administrative domain.

The NJAC has been held to be against the basic constitution. The judgement runs into a bit more than 1000 pages so it is difficult to get into the reasoning behind the judgement. However going by media reports the following are the points with my comments:

1)      The new law alters the basic structure of the constitution by giving the executive a primacy in judicial appointment thereby impacting judicial independence which is a basic structure of the constitution.
-          As far as I can see, there is no primacy given to the executive with the NJAC. It is quite a balanced  body with enough checks and balances. There are members of the body from the  judiciary who have veto powers and an undesirable candidate. Executive involvement should not be confused with executive primacy.  Executive/Legislative participation in the appointment process is something established all over the world and we do need to look inwards if we think it is wrong in the Indian context.

2)      The collegium system is a good solution and can be improved.
-          There are 2 parts to this point.
o   Which system is better ?
o   Does it make any difference from a legal perspective ?
-          Which system is better can be debated at length and there will be no common ground found. The second question is the more important one – viz – Does it matter?. The question here is not which system is better but which is legal.  Parliament’s job is to make laws and judicial scrutiny is to check whether the laws passed are against the constitution. This is the major point which is getting diluted with the question of which is a better system. The case should just dwell on the aspect of who makes laws and not get into how to improve the current system. It makes absolutely no difference as to which is the better system from a constitutional point of view. Parliament is elected by the people and is finally accountable to them. If parliament does not reflect the will of the people, the voice of the people will be heard during elections. We deserve the government we vote !!! I am not sure why this line of reasioning is followed by so many luminaries participating in this discussion.

3)      A unwise choice by the NJAC would have far reaching conseqeunces and the damage from such an act cannot be easily undone.
-          This is a risk and hence there should be enough checks  and balances. A  law cannot be struck down because there is a fear that it will not work. There have been stalwarts appointed under the old system who had the courage to take on the establishment on occasions. There have been mediocre and bad  appointments under the collegium system so it is childish to assume that a collegium would make a better choice than a diverse body. The collegium system is shrouded in secrecy with no accountability to anyone. Food for thought: Todays times of India reports that 99 judges of the high court and Supreme court are related to other judges.
4)      The government is the biggest litigant in the country and hence having the law minister as part of the NJAC would compromise its integrity
-          This is debatable and I am not sure of the answer. However by this same logic, the NJAC case is being heard by a bench of the supreme court who are also stakeholders and hence the quality of judgement could be compromised. Also by the same logic a frivolous view could be that  judges should not be allowed to vote since they are indirectly involved in the selection of legislative members.

So to summarize, my opinion is  this is a very unbalanced judgement and is more about distrust between a strong institution and an emergent one.  My fear is thar the democratic process will be the casualty. There might be short term benefits in terms of holding in a non working legislature but the long term damage is too large to ignore.

Remember the three legged table.

Sunday, March 2, 2014

Journalism, Medicine and the change from mission to business

Since the last year or months, the following which I can easily remember used to hog the television prime time 24 x 7.

1)      Arvind Kejriwal waving some papers in front of television camera’s accusing Rovert Vadra of some land fraud .

2)      The whole Tarun Tejal incident

3)      The Devyani incident. The Indian government had asked the USA embassy about details of people working in the US school. Prima Facia there was some suspicion of visa fraud.

4)      A prominent TV anchor  screaming that “India needs to know” and this channel will not rest until ....

None of the above has come remotely close to a logical closure. All have been replaced with some new topic that can hog headlines and  grab viewer attention.  Before the days of television, the newspaper was the main inputs for news and commentary.   There was a clear separation of editorial integrity and business needs  and rarely was there any compromise between the 2.  Editors were celebrities in their own right. 

 It is true that the prime  goal of any business is to do business, but by and large this is intertwined with some other objective.  The 4th estate is  one of the pillars of democracy  and once this missions is forgotten, a part of democracy is compromised.


It is something akin to whay is happening in medicine. I don’t know if this is related or unrelated to my above point.  My friend and physician Dr. B C Rao  sums it up very well in his blog



Sunday, December 29, 2013

Maidgate, Vienna Convention and a search for a balanced view

This post was written a few weeks back just when the “diplomat incident” was hogging all media time and headlines. I did not post it then but am doing so now. However  some of the facts may be somewhat incorrect since recent developments have not been taken into account.

The news have been mostly around the diplomat incident for the last few days and till date I don’t see very few balanced opinions on this subject. I personally feel a sense of outrage and think that this cannot be taken lying down. I do hope that this issue does not die down with any conclusion like so many of the recent issues. (ed: it has died down since I wrote this post)

Being curious of other points of view I did read a couple of non Indian journals and see a very wide gulf in our view of this whole incident versus that of Non Indians.

To make this very simple we need to acknowledge the fact that there are 4 different issues here

1)   The alleged crime committed by the diplomat

Now the facts are not very clear so it is difficult to form an opinion. It seems that the diplomats maid has made a complaint based on which the arrest was made. There is no evidence to suggest that the diplomat was questioned or asked her opinion or what evidence was examined to arrive at the conclusion of a crime. There could be 2 crimes here, one of paying less than minimum wages and one of “lying” to a USA federal agent.  Further discussion on this subject is not very productive without any of the facts and some knowledge of USA law. The  line of argument that “everyone does it” is not a defense. However  the facts around granting a visa to the maid and her family and the hurry and timing  with which they flew out of India is something without precedent.  It is a complete mockery of Indian law and I wonder what Americans would feel if India spirited out an American Citizen against whom there was a criminal case pending.

2)   The manner of her arrest and subsequent treatment

This is a difficult one. I briefly glanced through the Vienna Convention and am convinced that there has been a gross violation

Article 41 is quite clear on this:


1. Consular officers shall not be liable toarrest or detention pending

trial, exceptin the caseof a grave crime and pursuant toa decision by the competent judicial


2. Except inthe case specified in paragraph 1ofthis Article, consular officers shall not be

committed toprison orliable to any other form ofrestriction on theirpersonal freedomsave in

execution of a judicial decision offinal effect.

As a layman, this seems quite unambigious and should be the focus of all further discussion. This is really the crux of the issue and deviating from this dilutes the crux. Unfortunately a lot of discussion is going on about the diplomats background, her connections. All this might be true but still does not justify her arrest.  As has been pointed out by many people, this is not an attack on Devyani but an attack on India.

3)   Indian Media Response

The Indian media have provided  a stellar service in ensuring that the news get maximum exposure.  Much  of the reporting since  is quite inaccurate and portrays wrong perception.  In general the quality of journalism has been on a rapid decline which is a result of a battle to capture viewers. More of this on a later post. The interesting comments are from  western columns. They feel that India is over reacting on this. One reason of course is the dilution of discussion on the core issue as pointed out above. Indians certainly have an issue in expecting VIP treatment for celebrities and “VIPs”. The word VIP is a very Asian concept.  One thing I found interesting in discussions with some Americans on some new channel was the fact that they did not seem to be aware of international law or felt it was subservient to American law. I am not making any editorial comment on this for now.

4)   Indian Government response

For once, the Indian government has done absolutely the right thing. The opposition has strangely behaved in a responsible way by uniting with the government on this front. Reciprocity should be followed by us strictly. We by and large have a servile attitude to non nationals which galls me at least. I have personally seen (15 years back) Indian security staff at the US consulate at Chennai beating up auto drivers who drove by slowly waiting to pick up passengers and have always wondered how this was tolerated.  Any sensible person would know that while it is important to assuage a furious public, real diplomacy happens through back door channels. Both are important.  It would help if the media and public on the real issue at hand, viz apparently a false arrest and a clear violation of international law.  The steps taken by the Indian government are in the right direction but should certainly by upped. It is gratifying that India is following reciprocity very strongly as is evident from the withdrawal of privileges to USA consular staff.  Some papers have reported that the US Ambassador to India cancelled her vacation after removal of certain airport privileges, a fact that has not been confirmed. However  it is certainly very plausible.

5)   Closure

An interesting point is what would be closure in this case.  I think there would be 3 points for closure

a)    Respecting the rights of an Indian official. If there is a strong case that American laws were  willingly  violated, then she should be deported.  The USA  diplomatic community who don’t have immunity  should be ready to expect the same treatment in India in case they break any law.

b)    An apology for the wrongful arrest.

Given that the USA has not apologized for killing civilians in Pakistan, it is very doubtful that this will be acceded to.

c)    An assurance that this will not be repeated
d) An immediate return to India of the maid who is legally absconding..

Not sure about whether any of this will happen

What in most likelihood is going to happen is some “behind the scence” negotitions which are diametrically opposite to public posturing  and waiting it out till something new grabs mind share.


Sunday, September 1, 2013

Metrics and Measurements

Voice on phone: Sir, On a scale of 8-10, how would you rate our service?
Me:                    I would not rate you on a scake of 8-10
Voice:                 Sir Why wouldnt you rate us on a scale of 8-10
Me:                     Because 8-10 is not a scale.
Voice:                  Ok, How would you rate us on a scale of 1-10
Me:                     Sorry I cannot rate since you have confused me completely  now.

This is an actual conversation that happened with a car service station a couple of years back.

I am reminded of this incident because of a recent similar incident with an automobile provider.

There are some issues with my new car and I am getting continious calls from some call center asking me about my "purchase, marketing and delivery experience". When i tell them about my overall unsatisfactory experience which is still unresolved, they get confused and ask me to rate just the marketing and purchase experience. To cut the conversation short, I tell them I am overall unsatisfied but if they want feedback I can give it to them, but ask them to confirm if they really want it since my experience is negative. This normally either scares or confuses  them and they say it is okay and hangup. Unfortunately some checklist somewhere shows that my feedback is not complete so I get periodic phone calls with the same questions and  the cycle will continue till some one finally crosses my name from the checklist.

Ok What has this got to do with metrics and measurements?

This is a malaise that is spreading far and wide and shows how wrong measurements can generate wrong behaviours. In the above example, the person did not know if she should collect negative feedback and took the easy way out by just not collecting the feedback. In the  process the company lost an opportunity to get genuine feedback and worse got a lot of contaminated feedback since it was incomplete. In the first case of the scale of 8-10 it was either fudging at its worst, or a complete defective program intended for self delusion or to fool the world.

Now the fault does not lie with the people who do the surveys but rather the management which is not clear about what and why they are measuring. Take for example a resteraunt. In case you fill in the feedback and mention that something was average, you have delayed your leaving for some time while the staff  keep asking you why your feedback was "average" and not "good" and hinting at the fact that they will get into trouble with such feedback. In such cases I take the easy way out and just mark excellent for everything which again will waste a lot of other peoples time (and saving mine) while they collect, collate and analyze all the incorrect  data and come to wrong conclusions.

The above were very simple and a "Dummies example" but this same  problem is very prevalent in the field of software which is my bread and butter.  Software and more so in the Indian context has some
charecteristics which make measurement very fuzzy. The whole measurement hoopla  started when companies started chasing ISO and CMM and came to the conclusion that it was mandatory to collect metrics without understanding the intent. In the chase to get the coveted ISO certification or CMM assessment (many people confuse certifiation and assessment) , the metrics became the goal. In one of the software process discussion forums I used to frequent, a common question was "We want to start ISO/CMM/Sig sigma...) , so whar metrics should we collect"?  The frivlous answer which I made on occasions was to ask "What are you trying to achieve?". If you are not sure, collect some easy metrics like the temperature, humidity..... If you know what you want to achieve, select measurements that will tell you if you are on track to reching your goals or not. However without knowing what you want to achieve, there is no point in measuring anything.

Collecting metrics for the sake of collecting metrics is a waste of time.

I have thought a lot on why we have still no clarity in the are of software measurements. There are volumes of books and papers on this subject, but for some reason I  have very rarely seen a successful metrics program implemented which really used as a leading indicator for a strategic goal. I dont claim to be an expert or authority but do have considerable exposure to the industry and stand by my belief. I am not sure as to what the reason is for this gap.

Here are the some of the possible reasons:

1) Software is an art and not a science. Imagine if Leonardo Da Vince was managed by metrics. He would be tracking how many square feet of canvas he painted per day?
2) We are a bit fuzzy about what we do (ok this is an exagerration)
3) The whole measurement programs are designed by non practioners without any strong  management sponorship, largely to satisfy some statutory requirement.I think this is the second most most common cause
4) The metrics are used to judge peoples performance. This in my opinion is the most common reason for a metric program failure. This is a very controversial subject with the majority of the view that how do you make people accountable for something unless they are measured. Now I dont have a very convincing answer for this exceppt to fall back on authorities and  the fact that far more knowledablepeople  and gurus say that metrics should not be used to judge people but are a tool to guide you to achieve objectives and
meeting the objectives is what should be used to judge performance. This is actually a whole discussion by itself and I will leave it at this.  What is important to note is that practice of linking improvement metrics to individual performance is what generates wrong behaviours. A dummies example  would be call centers where the employees I presume are measured by the number of calls they close per unit time. What is not measured is the percent of saisfactory resolution which I understand encourages the front end employees to close calls by just transferring to the next link which is normally more expensive. I cant think of crystal clear examples in the soatware arena and will  leave it to another post.

I am looking for a forum to discuss this further but have got a bit rusty in this field. Anyway I hope this post generates some discussion since I am myself curious about this discussion.

What is important to note that measurements, metrics and KPIs are an absolutely invaluable tool for any sort of improvement or tracking and it is important to get this right.

Monday, March 25, 2013

Sanjay Dutt and Italian Marines

Having stopped watching television for a couple of weeks I found that I was not missing anything much. By and large watching the news debate is very interesting to observe people’s opinions on something they know nothing about. It is also interesting or depressing to see politicians views and outlook and the partisan attitude to anything and everything.
It was a misfortune that I got engrossed in the recent two issues of national importance viz the Sanjay Dutt sentencing and the return of the Italian marines.

1)  Sanjay Dutt had all my sympathy. There was no doubt that he had committed a crime and had suffered sufficiently and the sentence seemed a bit excessive. But I did get swayed by an argument on TV where a senior lawyer (Tulsi ?)  did open my eyes by his argument.
I     On reflecting, I think it is clear:
a.       Sanjay Dutt was guilty of a crime of possessing arms illegally. While he has explained his position, the fact remains that he knowingly did something illegal and it is assumed that he knew the consequences of what he did.
b.      He has been acquitted of the more serious charges of terrorism but has been consistently found guilty of illegal possession of arms.
c.       Our constitution is based on the premise of equality of all before law so he should be tried  as any one who does any similar act but does not bear his illustrious named, lineage or connections.
d.      Courts need to act based on law and not on public opinion. The most ridiculous argument is the amount of money locked up in films and that is mentioned as a reason to release him.

What  is  not beeing discussed is that it has taken  20 years since the offense to reach a conclusion. This is not a final conclusion since a review petition can still be filed and it is not known how long this process will take. Why does it take so long to deliver justice ? This is an area which needs urgent reform and which no one is talking about. A lawyer relative had once told me that the law is basically common sense but in India what rules is procedural law viz a viz principles of law.  That is, it is very easy to delay justice by following procedures. As a side note, a common method earlier  of protest used to be “Work to Rule”.  If everyone worked to rule, nothing could be done. When bus drivers and conductors worked to  rule, they did not allow anyone to stand, waited till all tickets been purchased before the bus moved….. So working strictly to rule can cause a near collapse of the system.
Coming back to the Sanjay Dutt case – once again my sympathies are with him. HE has committed a big crime but one can say that he has reformed and the idea of a prison sentence is after all to reform criminals and put the fear of prison as a deterrent for crime.  But to release or pardon him would mean looking at similar cases and not making any exceptions because of his public standing. 

2) Italian Marines
This is also a very strange case. The final result is a credit to firm diplomacy. The facts are clear
1)      The Italians did kill the fishermen. This is not premeditated murder but would be homicide.
2)      There is a dispute about jurisdiction and this needs to be settled fast
3)      They had got bail from the courts and hence has freedom of movement. Chandan Mitra from the BJP was accusing the government of colluding with the Italians pretending to ignore the fact that the govrnment is actually following the law.
4)      The Italians were undoubtedly planning on “pulling a fast one” but did buckle under diplomatic pressure.
5)      There is no point in ranting on intent but it is important to note that the matter is “resolved”.
6)      Credit is due to the government for handling it with the seriousness due. There is no doubt that an aggressive supreme  court did contribute to push for a solution. But for the court the government would have dawdled.
7)      The Italian government  need to keep Italian public interest in mind as much as the Indian government needs to keep Indian public interest in mind. What is said in public is not necessarily said in private. Diplomacy works differently.

What is again not being discussed is the fact that it is 1 year and 2 months since the incident and we are no where near even starting the process of trial. There are 2 straight forward points here, 1) Where is the trial to be conducted given international treaties and laws that we are signatories too  and 2) Are the marines guilty of murder and if so of what degree.  There is justifiable outrage on the part of the public on the behaviour of the Italian government and ambassador but no one seems to be talking about an immediate trial.

Saturday, October 6, 2012

Bandhs and L' Affair Robert Vadhra

Most of us in Bangalore have been under house arrest in view of the Bangalore Bandh. This bandh has been different from previous ones in that it seems to have a wide support. As always, I doubt anyone knows what the issues are regarding the dispute except that Karnataka should not release water to Tamil Nadu.  The cable operators have joined the strike and the only channels working are the news channels. This means one can chose between the Bandh and  L’affair Robert Vadhra. Both are equally depressing.
I don’t know anything about the water dispute and will try to educate myself before talking about it. One of the professor types on television seemed to think strongly that Karnataka had a case but I unfortunately watched it towards the end and missed the gist.
The Vadhra episode has been going on repeatedly and makes one more and more depressed. It is difficult to judge which is more ridiculous, the childish rants of Team Arvind or the  defence from the Congress.  My view is  that team Arvind is the more ridiculous and the  Congress frontguard of Salman Khurshid makes a stronger case. The self-righteousness of team Arvind  and substituting analytical thought  with innuendos makes me feel there is not much of a case. The whole affair does look a bit suspicious and might need some investigation but there is just not enough data to prove anything.  Assuming that there is a case,  Robert Vadhra should certainly face the majesty of the law and assuming there is none, so should Arvind and Prashant. However in India, “the law will take its own course” which means irrespective of either scenario it will take 25-30 years to reach a conclusion.
The media actions and inactions show a gradual collapse of one of the pillars of a democracy – the fourth estate.  Indian media seem to have got away from the traditional reporting and commentating to showmanship and pandering to ratings. (This same malaise has hit the health care but that is a different story).
The depressing part which I mentioned earlier is the complete lack of any substance in the debates on television.   Most of the political participants seem to substitute quality with volume and try to shout each other down. We are not seeing anything resembling an idealogy or position and these are substituted by mud-slinging
I keep coming back to thinking around ideology. How many of the partys have a clear ideology which they can declare and stick to if voted to power ?  Arvind Kejriwal  has announced that he would pass the Lokpal bill within 10 days of coming to power. This does indicate that law and civics is not his strong point and he possibly does not know (like most of us) how laws are passed in this country. Prashant Bhushan cannot claim the same ignorance and it is surprising that he is not correcting his political colleague.  He  goes on to assure us that  they will ensure that Petrol (or diesel?) prices will be pegged at Rs. 50 and no one will be allowed to make profits on essential commodities. That shows the same level of ignorance in economics as in civics.
On the subject of debates,  may look heavy but is very interesting  read and useful.  Unfortunately those who need to read it – don’t.

Update: 9-Oct Corrected link to logical fallicies