Socio-Economic Rights and Privatisation - Publication Round Up

Can privatisation of basic services, trade liberalisation and withdrawal of state be reconciled with state obligation towards protection of socio-economic rights and social justice? How are socio-economic rights implicated by the prevalent economic model of market integration and promotion of international trade and investment? Two recently published papers reflect on this intractable question.

Yoav Dotan's, Informal Privatization and Distributive Justice in Israeli Administrative Law, 36 Hamline Law Review 27 (2013) looks at the normative models used by the Israeli Supreme Court in addressing the distributional impact of privatisation of services in that country.

According to Dotan, recent privatisation of public utilities in Israel has been paralleled by increased recognition of socio-economic rights as part of he enumerated civil political rights in the Basic Laws. Yet the development of an activist doctrine of fundamental rights in the socio-economic field has failed to serve as a constraint against the distributive consequences of privatization.

Dotan explains:

“This is because the idea of fundamental socio-legal rights does not require full distributive equality with regard to relevant social goods (such as healthcare, housing, or education). It only provides for some minimal (constitutional) level of service that the state must supply to every member of society. The problem is, of course, that when one deals with the distributive outcomes of privatization, the doctrine does not constrain the process but rather approves its very essence and outcomes. This is because the starting point of privatization is complete equality in the provision of the service, and its end result is the creation of a free market that serves most people, with some minimal assurance of (an inferior) public level of services to the poor. Thus, the socio-legal rights doctrine is conducive to the outcomes of privatization because it only takes care of the minimal (welfare) level, while completely neglecting the overall impact of the process... When the Court encountered arguments against the distributive impact of privatization, it was always willing to accept the infringement of socio-economic equality if the government ensured some “basic,” “minimal” level of public service.”

Sharmila Murthy looks at the relation between privatisation and socio-econimic rights in the context of right to water and sanitation in her paper, The Human Right Water and Sanitation: History, Meaning and the Controversy Over Privatisation, 31 Berkeley Journal of International Law 89 (2013).

She avers that framing of water and sanitation as a human right is a response to global regulatory emphasis on efficiency and sustainability and has been a rallying call for anti-privatization movements. However, according to Murthy, “from the standpoint of international law, the human right to water and sanitation is not incompatible with private sector participation or with market-based approaches.“

Yet, she acknowledges that real tensions do exist between privatisation and the right to water.

“The challenges of operating an urban water and wastewater system complicate private sector involvement in the delivery of services. The large amount of infrastructure required means that network provision of water is a natural monopoly that is expensive to maintain and upgrade. Moreover, in recent years, there has been a stronger emphasis on full cost-recovery and “ring-fencing” services, which reduces the ability to cross-subsidize across different municipal sectors. While the human right to water and sanitation does not require that services be free, they do need to be affordable and no one should be denied services for inability to pay. This is a difficult goal to reach and requires that states critically assess their tariff structures.”

Most importantly, she argues on the basis of case studies from around the world that:

“The involvement of the private sector in the delivery of water and wastewater services will not necessarily lead to efficiency. Case studies from around the world highlight that without proper oversight, a private operator's drive to improve efficiency indicators by reducing costs can have significant impacts on water quality and consistent service delivery. Moreover, there are significant transaction costs associated with outsourcing to the private sector that need to be accounted for when considering proposed efficiency gains. Regulation and monitoring both play a key role in mitigating the tensions between market-based approaches and rights. Yet such oversight also requires strong institutional capacity, without which states are more likely to enter into private arrangements on unequal footing, resulting in terms that are not in the best interests of the public. Another challenge of engaging in private sector water contracts is that the international forums available for addressing such disputes are not transparent and may not provide a vehicle for addressing the concerns of individuals and communities who may seek to raise human rights concerns.”

It must be noted in this context that the U.N. Committee on Economic and Social Rights had asserted, in its General Comment No. 3 [GeneralComment No. 3: The Nature of States Parties' Obligations (Art. 2,Para. 1, of the Covenant),14 December 1990, E/1991/23 ]:

“...the undertaking “to take steps ... by all appropriate means including particularly the adoption of legislative measures” neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question, provided only that it is democratic and that all human rights are thereby respected. Thus, in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laissez-faire economy, or upon any other particular approach. In this regard, the Committee reaffirms that the rights recognized in the Covenant are susceptible of realization within the context of a wide variety of economic and political systems, provided only that the interdependence and indivisibility of the two sets of human rights, as affirmed inter alia in the preamble to the Covenant, is recognized and reflected in the system in question.”

Therefore, it would indeed be very difficult to claim that privatisation and economic liberalisation are inherently incompatible with the state obligation to protect socio-economic rights. The impact of privatisation policies at a programmatic level and their conformity to rights obligation is another matter though.

This however takes us to Kerry Ritich's warning that social rights are product of a time and place specific consensus. It was underpinned at a theoretic and a political level by the widespread acceptance of Keynesian economic arguments and models and by the consensus borne out of 1930s that entitlements to economic security and inclusion were of interest not just to those who directly benefited from them, but were instead a broad social and political concern. Therefore, it is probable that as political conditions and dominant economic norms have changed, historically contingent meaning of social rights may also undergo transformation in consonance with neo-liberal economic models.

Mid-Day Meal Schemes and Employment Opportunities for Women

Most studies on mid-day meal schemes tend to focus on the obvious nutritional benefits or lack thereof. Carly E Nichols argues that the impact of these programmes extend far beyond, justifying the need to fund and monitor them more stringently. She found that MDMS not only ensures nutritional security for children but also makes women's workload lighter through provision of childcare and food preparation.

In this piece, she argues:

“Programmes that work to reduce women's work burden in this area not only contribute to the overall food security of the family, but make a deeper impact by providing a public subsidy to the huge amount of 'invisible' or unpaid labour that women undertake every day.”

The Debate on the Food Security Bill- A Missed Opportunity?

Debates in an informed democracy should focus on issues of policy. Notwithstanding that the focus in the Indian political landscape is on mud-slinging, the Lok Sabha debate on the Food Security Bill, is illustrative of not just a fundamental lack of understanding of debate as a concept, but also a missed opportunity. In this Indian Express Op-ed, the author engages in an analysis of the Bill, which analysis the legislature has failed at miserably.

Issues such as economic sustainability, and the inherent flaws in the public distribution system, have been elucidated on, in an attempt to bring to the fore the relevant aspects of this debate and the flaws in the Bill.

This editorial piece also makes a point in a broader context, in reiterating the need for informed policy debates, so as to ensure the enacting of effective legislations.

http://www.indianexpress.com/news/entitlement-follies/1160377/

http://www.indianexpress.com/news/entitlement-follies/1160377/

Is India’s Child Malnutrition Problem Overblown? Of Height, Weight, Mortality and Genetics

Professor Aravind Panagariya’s recent paper, Does India Really Suffer from Worse Child Nutrition than Sub Saharan Africa, [Economic and Political Weekly, May 4, 2013] has engendered a lively debate on the appropriate methodology for calculating the incidence of child malnutrition in India.

In a paper, reminiscent of Lalit Dandona’s paper that led to massive downscaling of the estimates of the number of persons at risk of HIV/AIDS in the last decade [Lalit Dandona, HIV/AIDS Control in India, Lancet, 2002], Panagariya’s paper argued that the claims that India lagged behind even much poorer Sub-Saharan Africa in eradication of child malnutrition were based on flawed measurement methodology.

The paper averred:  

“The central problem with the current methodology is the use of common height and weight standards around the world to determine malnourishment, regardless of differences that may arise from genetic, environmental,cultural and geographic factors ...Malnutrition is a multidimensional phenomenon. In broad terms, it may be divided into protein energy malnutrition and micronutrient defi ciency...Given these many dimensions involved in identifying malnutrition, only a thorough medical check-up can properly determine whether a child is malnourished or not.”

Panagariya further added:

“The height of an individual can vary for both genetic and nutritional reasons. Without detailed medical examination, one cannot conclude whether an individual is short because of malnourishment or because of genetic factors. This makes identifying stunting by referring to just height, an imperfect exercise. Nevertheless, this is the current practice. Without genetic differences, there is no empirically plausible explanation for the signifi cantly higher levels of stunting and underweight among Indian children than their Sub-Saharan African counterparts.”

In addition to this conceptual critique, Panagariya also emphasised on the mismatch between malnutrition and mortality figures. Comparing the rate of malnutrition and infant and child mortality in India and Sub-Saharan African countries, he found prevalence of lower rates of infant and child mortality in India relative to Sub-Saharan  Africa despite higher malnutrition rates. In view of the fact that declining rates of malnutrition typically accompany declining infant and child mortality rates and maternal mortality ratios, he questioned the official figures on the rate of child malnutrition in India .

This paper has however resulted in a series of rejoinders from nutritionists, public health experts and economists in the pages of Economic and Political Weekly.

Gargi Wable, has come out in support of the use of height-weight matrix for the measurement of  malnutrition. In her paper, Methodologically Deficient, Ignorant of Prior Research [Economic and Political Weekly, Aug.24], she argued:

“First, countries have historically used anthropometric measures such as height and weight alone when assessing child under-nutrition. The Lancet 2008  Series on Maternal and Child Under- Nutrition provides substantial evidence on the relationship between chronic and acute undernutrition and poor height and weight gain in children under five, as well as the risk to morbidity and mortality among children who are stunted (too short for their age) and wasted (too thin for their height)...Second, since the author insists on medical assessment, gross levels of  undernutrition among Indian women and children have been reported from the serum testing performed periodically by well-regarded national surveys, such as the National Family Health Survey (NFHS) and the National Nutrition Monitoring Bureau (NNMB). In fact, even the latest round of the NFHS (2005-06), which tested haemoglobin levels pointed to a prevalence of iron defi ciency anaemia among as many as 70% of young children (6 to 59 months age) and among 55% of women in the child-bearing age group (15-49 years).Similarly, measurement of serum retinol levels in the NNMB 2003-06 rural surveys showed a 60% prevalence of Vitamin A deficiency among children of age one to six years.  Obviously, such pervasive levels of micronutrient deficiencies would not occur in  well-fed/well-nourished populations. Thus, using medical assessments instead of weight and height will not help to underrate India’s malnutrition burden.”

Several scholars have questioned Panagariya’s use of genetics as an explanans for deficiency in height among Indian children. Rakesh Lodha, Yogesh Jain and C Sathyamala note in their paper, Reality of Higher Malnutrition in India, [Economic and Political Weekly, August 24] that:

“The central question is whether the Indian genetic make-up is so distinct that it warrants separate charts. There have been multiple studies on the genomic diversity in India of which the Indian Genome Variation Consortium (IGVC) initiative has been the most comprehensive one (Indian Genome Variation Consortium 2008). Recently, the genetic origins of Indian population have also been reviewed (Tamang et al 2012). These papers highlight that the Indian population is a genetically diverse population with significant overlaps with other populations of the world, chiefly European and African. Very few groups are genetically distinct…The available genomics data does not suggest a unique genetic make-up of Indians and thus supports the use of a universal standard for comparing the burden of childhood undernutrition across countries.”

In the same vein, Coffey, Deaton et al, state in Stunting Among Children: Facts and Implications [Economic and Political Weekly, August 24] that:

“Panagariya discusses a number of puzzling facts about child and adult anthropometrics. Most, although not all, of these have been known for a long time. Scholars who have written about these puzzles have indeed noted that some of the facts have no ready explanation, for example, that Indians have higher average incomes and lower infant mortality rates than most of Africa, but that Africans are taller. What Panagariya claims to contribute is the answer to these puzzles: that they can all be explained by “genetics”. All of his argument about the role of genetics is by residual: if we cannot think of anything else, it must be genetics. There is no direct evidence on genetics anywhere in the paper.Genetics might be the answer, or part of it, but any argument by residual is obviously sensitive to having missed something, or to having overlooked some evidence.”

Panagariya’s claim that lower infant and child mortality rates indicate a lower rate of malnutrition has been questioned by Arjun Gupta, Biraj Patnaik et al, Are Child Nutrition Figures for India Exaggerated? [Economic and Political Weekly, August 24]. The paper notes:

“One of Panagariya’s central arguments is that Indian malnutrition figures are much higher than would be expected, given its child and infant mortality levels. This he shows using data related to every conceivable parameter such as life expectancy, neonatal mortality rates, and infant, child, and maternal mortality rates, very often out of context, and attempting to shock readers into rethinking India’s performance on nutrition.

However, it is important to note that not all undernutrition leads to death. Death is dependent on many factors such as the nature and duration of illness before a child dies, and access to healthcare and health facilities, especially emergency care. Public health measures such as the state of immunisation, and water supply are also important. It is an unfortunate truth that while curative care in India does not address the problem of malnutrition, it does save malnourished children if they land up at a hospital in time. In his article, Panagariya does not appreciate the importance of medical facilities in explaining better mortality figures. Surely he knows that India is a nation in transition, with poor food intake and widespread hunger on the one hand, and relatively well-established healthcare services, especially emergency care, on the other.”

There is a certain intuitive appeal to Panagariya’s argument that when almost all of the statistics suggest that India’s doing better than sub-Saharan Africa and there’s one statistic going the other way,  one has to look closely at that one errant statistic. Yet, as Gupta, Patnaik et al claim, the answer to India’s failure to combat malnourishment in face of its substantial success in bringing down infant and child mortality may be rooted in the peculiar features of its public health system. contours  

This view finds support in Dean Spears’ Coming Up Short in India in Mint, poor sanitation and resultant chronic intestinal infections could explain the persistence of child malnutrition in India.  

National Old Age Pension Scheme

This Economic & Political Weekly article examines the workings of the National Old Age Pension Scheme in the districts of Jharkhand and Chhattisgarh. An analysis of the impediments faced in the operation of this scheme, revealed rather surprisingly that the evidence of corruption was sparse. Arguing for streamlining the delivery mechanism of the scheme, the author makes out a case for expansion of this scheme and an increment in the amount of pension.

It would be interesting to read this article in light of the Martin Ravallion piece on targeted schemes, and analyse whether this targeted scheme accounts  for targeting costs and will be sustainable in the long run.

http://www.epw.in/special-articles/old-age-pension-scheme-jharkhand-and-chhattisgarh.html?ip_login_no_cache=ced452a0e957eb2aea4c1bfc3d0c9ee7

Neither Small, Nor Green - Hindu Op-ed

Parineeta Deshpande-Dandekar through an example of the Kukke I Hydel Project, proposed to be established in the forest of Western Ghats, illustrates how flawed and misleading the rhetoric of development can be.

http://www.thehindu.com/opinion/op-ed/neither-small-nor-green/article5045672.ece

The Unaccounted Costs of Targeting- Indian Express Op-ed piece

Stressing on the imposition of cost on the recipients of targeted social policies, a former World Bank official Martin Ravallion, draws attention to the unaccounted costs of targeting, and argues that while targeting may be a means to alleviate poverty, it is not an end unto itself.

What is opposed by him is not the non-universal nature of the mechanism per se, but the homogeneous lens used by policymakers while framing targeted polices.

http://m.indianexpress.com/news/the-unaccounted-costs-of-targeting/1157291/

More on Delinking Poverty and Government Welfare Programes: UPA's Shift Towards Multi-Dimensional Analysis of Poverty

Mihir Shah, Member Planning Commission attempted to dispel some of the confusion around the official poverty line adopted by the Commission through this piece in The Hindu.

In, what I would call a minimalist, defence of the Planning Commission Poverty Line, Mihir Shah argues:

“All that the Planning Commission has done is to use the most credible source of consumption data available in the country (the National Sample Survey Organisation) to compute poverty estimates that are both on parity with international standards and enable comparisons within India over time and across States. There is no value judgment being made about the adequacy of this amount of money for any meaningful purpose. All that is being done is to provide an estimate (using the very same methodology) that allows one to compare the number of people below a certain consumption level (aka poverty line) in 1993-94, 2004-05 and 2011-12. Nothing more, nothing less.”

He further goes on to aver that:

“What is even more important, however, is to clarify what the poverty line does not signify. Contrary to popular misunderstanding, there is no suggestion whatsoever that the benefits of government programmes will be restricted to those below this poverty line.”

It is important to note that Mihir Shah makes a quasi-official acknowledgement of the need for de-linking welfare programme from poverty line given the limited informational focus of the latter. In fact, he explained the key elements of the ambitious plans of the UPA Government to gradually move away from a uniform poverty line to use of multiple benchmarks for welfare programme through the Socio-Economic and Caste Census (SECC).

“the incontrovertibly clear landmark contribution made by the UPA-II government is that for the first time in the last 20 years, the poverty line has been delinked from entitlements of the people of India. Indeed, with the 12th Plan, this government has taken the first steps in acknowledging that poverty is a multi-dimensional concept that cannot be reduced to consumption expenditure alone. To illustrate, till now if you were to be regarded as a beneficiary of the Indira Awaas Yojana (IAY) or the Total Sanitation Campaign, you needed to possess a BPL card. The distribution of these cards was plagued by humungous errors of inclusion and exclusion, such that many of the really poor would not be included but those with muscle power at the local level managed to hustle BPL cards even if they were not poor.

During the 12th Plan, all this is poised to change with the enshrining of the principle — “programme-specific indicators for programme-specific entitlements.” This is a clear recognition that poverty has many dimensions, each of which is to be tackled by different programmes and the benefits of each programme will either be universal (as in MGNREGA, health, primary education, sanitation, mid-day meals, etc.) or be based on data on specific deprivations such as homelessness.

The Socio-Economic and Caste Census (SECC) conducted by the Government of India, in partnership with all State Governments, is nearing completion. The SECC data will be presented in gram and ward sabhas across the country over the next few months and this will enable a kind of social audit of this data and foster citizen awareness and participation in the process. The SECC contains invaluable information on homelessness, manual scavenging, disability and a host of other deprivations, all of which are major constituents of poverty. These will be used to identify the people entitled to specific benefits. Thus, the homeless will be the beneficiaries of IAY and the disabled will get disability pensions, irrespective of whether or not they have a BPL card. The food security legislation will cover 67 per cent Indians, which is more than three times the number of people living below the consumption poverty line (22 per cent).”

This shift would mirror UNDP's move towards the Multi Dimensional PovertyIndex (MPI) and provide the government a more comprehensive understanding of incidence of deprivation in the country and a more reliable basis for targeting  Nonetheless, the proof of the pudding is in eating and one must wait for more details to emerge before hailing this move. As it is, the SECC process has been plagued by widespread criticisms of its methodology.