[This is Part Two of a two-part series by Meghna Mishra and Priyadarshini Rathore. Part One may be found here.]
The Cost of Global Climate Agreements and Indian Laws
The last few decades have witnessed various Global Climate Agreements that have emerged as a result of global diplomacy and the need to combat climate change.[i] These aforementioned International agreements have proved to be more effective in controlling climate change in comparison to domestic climate laws of the respective countries. The United Nations Framework Convention on Climate Change (UNFCCC), 1992 was the first global treaty to address climate change and established an annual forum that led to the Kyoto Protocol and the Paris Agreement.
Despite comparative effectiveness, it is a well-recognised fact that these agreements are not the solution.[ii] One of the major inefficacies of these agreements was their severe impact on the economy. For instance, The Kyoto Protocol, which came into effect in 2005 placed heavy reliance on “governments applying tax and regulatory measures that require companies to emit lower volumes of greenhouse gases.”[iii]
This resulted in higher production costs and lower earnings for greenhouse gas-generating activities, without providing a fall-back to these large businesses. The aforementioned Protocol also created a ‘market’ for emission rights and made provisions for penalising activities that use greenhouse gases. This produced additional costs and reduced production. While the introduction of such a market could be seen as effective in principle, it inevitably reduced the profitability of most companies, threatening their ability to survive and weather the transition to greener methods and cleaner energy.
The conditions laid down in the Kyoto Protocol targeted every activity that led to the emission of greenhouse gases. These activities are found to be abundant in every sector such as manufacturing, energy production etc. A sudden switch to cleaner and more advanced technologies was not the most prudent decision that the majority of the businesses could adopt considering the high costs associated.[iv]
Realising the significant threat of climate change and the inadequacies in the previous agreements, mainly the Kyoto Protocol, the Paris Agreement succeeded the Protocol. Chris Field, the director of the Stanford Woods Institute for the Environment elaborates, “The Paris accord was designed to address the flaws of the Kyoto Protocol”.[v] Through this agreement, the parties to this agreement laid out Nationally Determined Contributions (NDCs) that were to be carried out voluntarily.
The non-stringent and voluntary nature of these agreements have also provided for India to evade comprehensive legislation. India’s domestic policies, though tailored for the country, remain fragmented and out of touch to serve the needs of the modern and evolving economy. The Indian climate policy is encapsulated in National Action Plan on Climate Change, 2008. Various other legislations address specific areas of concerns like wildlife, pollution, flora and fauna, etc. However, the lack of a thorough policy on Climate Change at both Central and State levels has been subject to criticism.[vi]
This absence is also reflected in the impact of climate change on India’s economy. The inadequacies of the current policy fail to guide the cohesive union of climate change and economic development which poses a serious threat to the domestic economy. The current legislation and policies either provide for costly alternatives and stringent restrictions that deter development or do not contain provisions for climate preservation at all.
Thus, to attain a symbiotic relationship between economic progress and climate preservation, a need has arisen for a comprehensive policy at the global level that is suitable for the continually evolving globalised economy. The policy must also contain guidelines for countries to design national policies that are tailored to their domestic climate concerns.
Suggestions & Recommendations
At a stage where the effects of climate change are rampant in the whole world, immediate steps must be taken at the national and global levels. The COP26 international climate talks in Glasgow commencing in November, 2021 is a much-anticipated conference addressing climate concerns of the masses. Significant prospective goals of the conference include Providing $100 billion of annual climate financing and ending deforestation by the decade.[vii]
However, the conference has also invited some backlash from climate sceptics, especially after UN secretary-general Antonio Guterres said that, “there is a high risk of failure of UN Climate Change Conference (COP26)”.[viii]
A notable theme of discussion in the conference will be the feasibility and implementation of ‘net zero’. In simple terms, net zero is the state when the amount of greenhouse gases removed will be the same as greenhouses gases emitted in the atmosphere. Green alternatives are the biggest ally in achieving net zero by 2050. However, the commitment to reach net zero by 2050 has been met with its fair share of criticism. Ecologists and scientists have expressed concerns of the net zero targets being ‘vague’ and “sort of a cover for business as usual”.[ix]
Emissions and the production of certain large-scale industries such as steel, aviation, and shipping become hard to treat, especially in a short span of time[x]. However, the current climate buzz word remains to be a promising endeavour to bring about substantial positive climate change.
While the fight against climate change does not have any straitjacket formula, dedicated policies implemented in a phased manner are the need of the hour. These policies must have a dual objective- to build incentives and to combat climate change gradually.
In order to realise this, a comprehensive climate policy, that is strictly enforceable in nature, should be introduced in India. The climate policy must be designed keeping in mind the current voluntary climate policies in India and also foreign models as an inspiration. This policy must also contain provisions for setting up a Climate Policy Committee whose objective would be to outline guidelines for the role of corporations in the fight against climate change. Further, policies to incentivise “Green Activities” such as the introduction of sustainable alternatives must be introduced. These incentives can be in the form of lower taxation or funding through government schemes among others, in clean energy projects.
There is also an urgent need for policymakers all over the world to devote resources for R&D of sustainable and innovative alternatives. It is worth noting the policies surrounding Solar Energy in this regard which took it from an unfeasible to one of the most affordable sources of energy in the world, all due to the ideal combination of R&D, incentives and laws. In addition, the Government must work to gradually implement alternatives that have already been developed in a phased manner. Due to the major cities being hubs of pollution, and having better technological and infrastructural access, the exercise of these alternatives in these cities can be successful.
While Green Economics has been deemed idealistic and fanciful by many, it is rather pragmatic to view economics in terms of its direct outcome on people rather than abstract mechanisms. Such an outlook makes the case for immediate response on the woes of climate change. Moreover, the risk of environment-friendly policies only lies in the unsuccessful or patchy transition from the current scenario to the goals set for the future. Therefore, a well-thought-out strategy that builds on itself regularly and involves stakeholders at all levels is best positioned to combat the increasingly grave impact of climate change.
In the month of May 2021 alone, two cyclones, Tauktae and Yaas, hit India.[i] This was in continuation to the three cyclones that had made landfall in the country in 2020, one of which was the super-cyclone Amphan that caused damages to the tune of ₹1.02 lakh crore[ii] in the state of West Bengal alone. Thus, it was rightly deemed the ‘costliest tropical cyclone’. Scientists and researchers have attributed these increasingly common and devastating disasters to be an outcome of global warming[iii] and climate change. Additionally, heavy rainfalls, droughts, and heat waves that are wreaking havoc all over the world are believed to have the same source. There is growing research attributing these phenomena to human activities ranging from deforestation to burning fossil fuels and use of chlorofluorocarbons (CFCs).[iv]
As much of a buzz-word as it might be, the ubiquity and relevance of ‘climate change’ as a phenomenon cannot be overestimated. Climate change refers to the gradual yet long-term change of weather patterns over the globe. As an issue to be resolved, it stands at a unique intersection of economics, politics, natural science and social science.
Further, the issue, when addressed, requires both immediate actions along with a sustainable long-term plan to combat it at local, national, and global levels. Despite the controversy and contention surrounding the discourse on the subject, it is hard to miss the signs these days. But even if one does acknowledge climate change as a reality, what is the best way to address the matter? Some reports believe that the aspiration to reduce environmental impact through greener production methods might lead to inflation in the medium run, owing to higher costs. On the other hand, is the proposition that the damages incurred in the future, if the transition to greener alternatives fails, will far outweigh the costs incurred to ensure its success.[v]
Moreover, marginalised communities are likely to face the brunt of all damages caused by climate change in their daily lives. This post aims to give a detailed account of these conflicting propositions through contemporary research from the field of law and economics, in order to give greater context to the events surrounding climate change and the various measures taken to combat it.
The Economics of Climate Change
Perhaps the most fundamental and well-known principle of economics is that resources are scarce.[vi] Fossil fuels, the source for the world’s growing energy needs is a scarce resource. Thus, even if demand and supply have an important role in determining the price, the scarcity of a commodity like fossil fuels prevents the law of demand and supply from functioning in a regular manner. Even if subsidies are granted or usage is taxed, it can in no way yield the resources once they are exhausted. Therefore, to ensure our ability to meet future needs and reduce our ecological footprint, it is imperative to find and adopt alternatives. While it is neither easy nor cheap for firms dealing with natural resources to adapt to the changed environment, failure to act now will only make this transition tougher and more expensive with the passage of time.
Climate change is also detrimental to the productivity of operations for businesses. Fossil fuels create pollution that harms the human body causing a variety of illnesses for workers and non-workers. Not only does this harm the productivity of the firm, but in light of the legislations worldwide to curb pollution, it exposes the businesses to the risk of various fines and sanctions. Climate change is also believed to have altered the predictability of the weather while also causing several calamities, which adds to the uncertainty of agricultural output and construction activities in particular, these being the economic base of a significant chunk of countries. Therefore, if companies and countries do not buckle up to transition into a greener world, they might not be able to survive in the coming years.
While the report by ‘Network for Greening the Financial System’ to uncover the costs and risks involved shows that a consistent effort to reduce and limit climate change to 1.5 degree Celsius (as the maximum temperature rise) will involve the least transition risk while adequately controlling CO2 emissions.[vii] However, there is debate over what should be our goals and metrics in this transition. How do we make this transition in an ‘economically viable’ way?
The discipline of Economics has been criticised before for being heavily focused on the financial aspects without accounting for the actual impact on the ground level. For instance, gross domestic product or GDP, the most common measurement tool for quantifying economics, does not account for the cost of growth it espouses or account for equitable distribution of resultant benefits. While neglecting losses due to pollution, it also does not provide a reference to the amount of resources utilised to achieve said growth i.e., is the use efficient and sustainable or not?
A measurement in this regard is decoupling which compares the rate of use of resources with the rate of growth of the GDP,[viii] with the aim of ensuring sustainable growth. According to the London School of Economics, it is impossible to achieve decoupling while fostering economic growth. This is because the hope for future reduction in use of materials and better technology was pinned on the global economy transitioning from manufacturing-oriented growth to services-oriented growth, leading to less resource-intensive development. However, this has not been the case since the share of services sector increased in the 21st century, so did use of resources marked by diminishing relative decoupling. Under such circumstances, absolute decoupling seems like a distant dream.[ix] This is an indicator that it might already be too late. Yet, there is also no better time to act than now.
It is equally important to rethink economics. The purpose of the distribution of resources is to ensure a standard of living for all. While GDP as a metric is unequipped to address these concerns, economists have developed other less widely accepted indicators under Green Economics. One such indicator is the Genuine Progress Index that accounts for environmental and social indicators along with the economic indicators. Unfortunately, it has been falling while the GDP has been rising.[x] Although the need for stable macroeconomic indicators for a functioning economy cannot be denied, it is also important to consider what ‘material prosperity’ sets out to achieve in the context of the problems posed by climate change.
Corporate responsibility too is an important factor to consider in this regard. Is profit maximisation the only objective of businesses? What do businesses owe to the people they impact? Do they have no accountability, especially considering the long-term existence of the planet? For the longest time, the outcome of business operations was only looked at in terms of tangible costs, revenue and profit without accounting for externalities and indirect costs incurred as a result of their operations. This is changing. Frameworks like the Common Good economy encourage companies to view their ‘success’ in terms of their ultimate impact and contribution to the society and its components, rather than just profit.
It is also important to note that the offset is in the time we take to respond. The longer it takes to accept and execute policies for sustainable change, the more concentrated, dire, and rapid, execution will have to be, thereby, increasing the risk of unsuccessful transition.
[i] Anjali Marar, “Cyclones Tauktae and Yaas leave exceptionally wet trail in May across India: IMD”, THE INDIAN EXPRESS, Pune, Saturday, May 29, 2021.
[ii] Shiv Sahay Singh, “Bengal pegs cyclone Amphan damage at ₹1.02 lakh crore”, THE HINDU, Kolkata, Monday, June 07, 2021.
[iii] Richa Sharma, “Why are cyclones more frequent in India this year?”, THE INDIAN EXPRESS, New Delhi, Tuesday, May 25, 2021.
[v] Rachel Morrison, “The Climate-Change Fight Is Adding to the Global Inflation Scare”, BLOOMBERG QUINT, London, June 18, 2021.
[vi] Peter Shizgal, “Scarce Means with Alternative Uses: Robbins’ Definition of Economics and Its Extension to the Behavioral and Neurobiological Study of Animal Decision Making”, FRONTIERS IN NEUROSCIENCE, Vol No. 6, 2012, p. 16.
[vii] Antoine Boirard, et al., “Climate Scenarios for central banks and supervisors”, NGFS publications, June 2021.
[viii] Tim Jackson, PROSPERITY WITHOUT GROWTH, 2nd ed., 2017, p. 21.
[ix] Jason Hickel and Giorgos Kallis, “Is Green Growth Possible?” NEW POLITICAL ECONOMY, Vol. 25 No. 4, 2019.
[x] Robert Costanza et al., “Development: Time to leave GDP behind”, NATURE, Vol. 505 No. 7482, 2014
At present, we stand at such a stage of technological advancements where crores of rupees can be transferred from one bank account to another within a matter of few minutes. A loan finance can be arranged within a span of 10 minutes and thousands of shares can be purchased by an investor through the click of a button. Corporate finance could have never been easier as it is today, with thousands of investors and institutions ready to invest billions of dollars in start-ups and ventures and see their investments grow manifold within a span of few years. One such type of finance is crowdfunding; which means that the funding is raised from the general crowd. This pool of fund is more like an open box, where anyone without high disclosure of information can invest their financial resources, starting from as low as a thousand rupees, considering their budget restraints, in seed-based start-ups and other forms of businesses. The idea may be popular around the world, however in India, quite a restrictive and careful approach has been taken while regulating crowdfunding as a source of finance. This blog shall deal with the following motions –
[I] Does India really need to regulate Crowdfunding?
[II] What may be the impact of non-regulated Crowdfunding?
[III] How is Crowdfunding treated around the world?
II. Does India Really Need To Regulate Crowdfunding?
In India, crowdfunding is officially not categorized by any authority, but can be differentiated into the broad four types listed as following –
– Reward Crowdfunding: These are the funds that are accepted by start-ups which provide a future tangible reward or a discount or cash-back coupon for a product that will be launched in the near future. It may be for either a food related product or even a video game depending upon the company. These are generally done for the promotion of the product or service and not for raising capital for the company. Thus, they do not really have the need to be regulated by the Securities and Exchange Board of India (SEBI).[i]
– Donation Crowdfunding: These are the funds where no economic activity or purpose is involved by the fundraiser. It is generally done for artistic, philanthropic or social activities. It may be raised by a person who may require funds for hospital bills, education scholarships, disaster relief management and other such purposes.[ii]For instance: a crowdfunding was started to raise funds for floods occurred recently in India and to tackle the spread of COVID-19 by the Government of India.[iii]
– Equity Crowdfunding: This funding is one of the most popular crowdfunding all around the world. Under this, companies raise capital through online portals registered by them for small investors. These are generally done by small start-ups or micro companies who do not require large funding or may not have an institutional investor. This platform serves as an intermediary between the investors and the company, who are looking to raise capital with minimum formalities and lesser costs as compared to going public on a listed stock exchange. In India, Equity Crowdfunding is illegal, for reasons discussed below, by the authorities including the Reserve Bank of India (RBI) and the SEBI.[iv]
– Debt Crowdfunding: Also known as peer-to-peer lending, it is a method to raise debt or loans which are paid along with the fixed rate of interest. Instead of going to the bank or any other financial institution for raising a loan, the company may use this platform to incur a debt obligation, which is unsecured by any collateral or any other form of security. The interest rate is determined by mutual consensus or published on the online platform in advance.[v] Currently, debt crowdfunding is regulated by the Non-Banking Financial Company- Peer-to-Peer Lending Platform (Reserve Bank) Directions, 2017.[vi]
In order to protect the interests of the investors, especially those who invest small amounts of capital, no authorisation has been provided to such platforms and no directions for regulations have been laid down by the authorities.[vii]
III. Impact Of Non-Regulated Crowdfunding In India
In India, there is no single department or authority which governs the functioning of crowdfunding. The matters of debt crowdfunding may be dealt by the RBI. However, equity crowdfunding is technically governed by the SEBI. The donation-based and reward-based crowdfunding are not regulated under any laws per se, however, it can be construed that it may have an indirect mention under the Foreign Contribution (Regulation) Act, 2010,[viii] Foreign Exchange Management Act, 1999[ix] and Income-tax Act, 1961.[x]
In 2016, SEBI announced that all equity crowdfunding websites which allowed individual investors to be registered online shall be held in contravention of the Securities Contract (Regulation) Act, 1956 and the Companies Act, 2013.[xi] There are certain reasons due to which SEBI has considered the option of avoiding equity crowdfunding to be legalized by regulating the same, which are –
The amount of investment may be small, lucrative and convenient for the small uninformed investors, who do not possess the knowledge of calculating market risks and may not understand the fluctuations and the stakes involved in their investments.[xii]
The stock exchanges are recognized after going through heavy regulations, scrutinization and have constant disclosures to be made to SEBI throughout the year. The net-worth of these crowdfunding platforms do not even weigh 1% of a single regulated stock exchange in India and multiple platforms may only add on the existing burden of regulations upon SEBI, without any reciprocal returns. [xiii]
Since the methods are not regularised, there are no limitations under the law to disclose all or even material information that may be required by the investor to make an informed decision. This leads to an absence of due diligence on the part of the investor which may lead to an error in investment decision.[xiv]
Under the Income-tax Act, 1961 any donation made above the figure of Rs. 2,000 is not liable to be exempted under the purview of income tax[xv], the knowledge of which may not be present in majority of the small investors, who may be misled by false information.[xvi]
IV. Treatment Of Crowdfunding Around The World
Crowdfunding is not considered to be one of the legal methods around the world, despite that, it is yet practiced due to lack of regulation and legal sanction by the jurisdictions. Following are the few examples where crowdfunding has either been allowed or been treated as illegal –
– UNITED KINGDOM: UK allows one of the most relaxed approach with regards to equity crowdfunding. However, the scrutiny is done on the platforms on which the crowdfunding is performed. These platforms possess their own rules and guidelines to select the best and most suitable companies for crowdfunding. The authorities have provided attractive tax incentives via the Seed Enterprise Investment Scheme and Enterprise Investment Scheme for Early stage and mature start-ups, respectively. These tax benefits offer the companies who raise capital through crowdfunding to set-off such investment against the current direct tax liability.[xvii]
–UNITED STATES: In US, a fixed amount is decided by the authority, which increases gradually along with the rate of inflation as a cap limit for raising funds through equity crowdfunding. In 2019, the amount was US$1.07 million. Rewards funding has been more promoted rather than equity crowdfunding by popular websites such as WeFunder, Indiegogo, StartEngine etc.[xviii]
–CANADA: In comparison with UK and US, the crowdfunding laws in Canada are quite restrictive in order to protect the interest of the investors. The Canadian laws allow accredited investors, including friends, family and business associates to invest in the company without furnishing a proper prospectus. The crowdfunding was one of these areas where lenient restrictions were allowed, however the disclosure requirements and the cost of equity crowdfunding was exorbitantly high to be afforded by a start-up.[xix]
– NEW ZEALAND: The authorities follow a laissez-faire approach in regulating the equity crowdfunding market. The Financial Markets Authority, New Zealand have chosen not to enforce any additional regulations for equity crowdfunding companies. This was a cause of concern for many critics, as it may become the wild west of the crowdfunding platform, however, the statistics have spoken otherwise.[xx]
– AUSTRALIA: Australia is one of the most recent countries to have legalised equity crowdfunding, in late 2018. To catch up in the market, the websites have published exciting offers across various sectors to attract the investors. However, there lies a limitation that only a private limited or public company registered under the Australian Laws shall be allowed to raise capital through equity crowdfunding.[xxi]
In developing nations, crowdfunding brought US$430 million in 2015, with India, the Philippines, and Nepal in the top three. The potential of the developing nations has been estimated to be raising a capital of US$96 billion per year, according to the World Bank. All of this data indicates the fact that, there is an increased awareness among stakeholders about raising capital from non-customary sources when the entirety of the regular sources, demonetisation and presentation of Goods and Services Tax Act, 2017 has neglected to address the worries of sprouting business visionaries and have stunned their forthcoming endeavour. Despite the fact that the development of Fin-tech in India appears to change the gears of new business and is continually having an effect on individual lives; it has its own interests. In consideration of the pace at which such group-financing businesses have flooded the Indian market, the Government made a few strides in controlling and regulating such businesses in India. SEBI did as such by fusing guidelines on remuneration-based Crowdfunding and giver-based Crowdfunding. However, it is to a great extent, quiet on the guideline of value-based group financing and online based Crowdfunding. This causes a genuine quandary concerning how a balance can be struck in the Regulatory Framework for such business, taking into due consideration the paradigm shift they are bringing about in the Indian economy. It is relevant to notice the fact that there is an untapped potential in the Indian market for which we need legitimate, consistent laws and administrative systems. The need emerges to; moderate cheats, and follow privacy laws and additionally to guarantee that deceitful activities don’t occur. Keeping in mind the dangers of group financed ventures, the legal framework ought to recommend all around defined qualification and disclosure requirements concerning the organisation and its strategy. Such stages could likewise be needed to direct ‘online suitability tests’ to check whether investors are hazard-mindful. To guarantee that any misfortune to investors is little and endurable, the law should set cut-off points on the most extreme measure of assets that might be contributed by any person. Group subsidising stages could likewise use online media stages to work with steady exchange among investors and issuers, with proper disclosure requirements.[xxii]
[xvi] Shwetha Chandrashekhar, Equity-Based Crowdfunding as an Early Stage Financing Alternative: Critique of the Regulatory Proposals in India, INDIACORPLAW BLOG (Mar. 27 2016), https://indiacorplaw.in/2016/03/ equity-based-crowdfunding-as-early.html.
The funds raised and investments made by Alternative Investment Funds (“AIFs”) in India stood at INR 212979.40 crores and INR 184525.49 crores, respectively, as on December 31, 2020.[i] However, the investments made by these funds in real estate investment trusts (“REITs”) or infrastructure investment trusts (“InvITs”) were not satisfactory. In addition, Foreign Portfolio Investment (“FPI”) in these trusts was not allowed for a long time. To bridge this gap, the Government of India has made attempts to bolster the real estate and infrastructure sectors by bringing amendments under the Securities Contracts (Regulation Act, 1956 (“SCRA”), Securitisation and Asset Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“SARFAESI’) and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (“RDA”). In this article, we discuss and analyse these amendments and their impact on the borrowing or issuing aspect of the pooled investment vehicles (REITs and InvITs).
REITs & INVITs: LEGAL FRAMEWORK
A REIT is a trust registered under the Securities and Exchange Board of India (“SEBI”) (Real Estate Investment Trusts) Regulations, 2014[ii] and issues quasi debt-equity instruments that own or finance income producing real estate assets in a range of properties. While an InvIT is a trust registered under the SEBI (Infrastructure Investment Trusts) Regulations, 2014[iii] as an investment vehicle which issues quasi debt-equity instruments to hold income-generating and operational infrastructure assets such as roads, power transmission lines, gas pipelines, etc.
GROWTH OF REITs & INVITs AND THE AMENDMENTS
India has witnessed considerable growth when it comes to REITs, the first Indian REIT listing, saw its share price shoot up around 34 per cent in its first six months.[iv] Similarly, InvITs are playing a crucial role in the Indian economy. Moreover, as per Crisil (first Credit Rating Agency established in India), InvIT assets are to grow five-fold to INR 2 lakh crores.[v] Therefore, these investment vehicles have the potential to play a crucial role in the Indian economy however raising financing from FPIs was a stumbling block since the SCRA did not provide for issuance of securities (mainly debentures) by pooled investment vehicles. Seeing the slow yet steady growth opportunities in these investment vehicles, the Government of India has made some amendments under the SCRA, SARFAESI and RDA.
The SCRA previously did not expressly provide for the issuance of debentures as securities by pooled investment vehicles (trusts). Consequently, section 30B(1) of the SCRA now provides that pooled investment vehicles (REITs and InvITs) registered with SEBI can borrow funds and issue debt securities.[vi] Further, sections 30B(2) and 30B(3) of the SCRA provides that pooled investment vehicles may now grant security interests to its lenders or debenture holders subject to its trust deed’s clauses.[vii] Furthermore, the Finance Act, 2021 has included section 2(h)(ida) under the SCRA as securities which classifies “units or any other instrument issued by any pooled investment vehicle”. It includes debentures or bonds issued by a SEBI approved pooled investment vehicle (InvITs or REITs), regardless of whether such vehicle is constituted as a trust.[viii] The amendment is expected to provide a major fillip and will pave the way for the foreign investors to invest in the debentures issued by REITs and InvITs in India.
Further, the Finance Act, 2021 has also brought amendments under sections 2(1)(f), 2(1)(f)(i), 2(1)(f)(i)(a) & 2(1)(f)(i)(b) and section (2)(g) of the SARFAESI and RDA, respectively. These amendments expand the definition of ‘borrower’ to include a pooled investment vehicle, which, when combined with the definition of ‘secured creditor’ under the SARFAESI,[ix] will allow a debenture trustee in respect of listed secured debt securities issued by InvITs or REITs to benefit from the protections and enforcement mechanisms provided by the SARFAESI. The eligible lenders can now take advantage of the RDA[x] in relation to debt securities issued by InvITs or REITs.
Similar to above provisions, observing the investment growth in InvITs and REITs and consequent to Finance Act, 2021 the Insurance Regulatory and Development Authority (IRDAI) (a regulatory body tasked with regulating and promoting the insurance and re-insurance industries in India) in exercise of the powers under section 14(1) of Insurance Regulatory and Development Act, 1999 (“IRDA”) vide a circular dated April 22, 2021 allowed insurers to invest in debt securities issued by InvITs and REITs (rated and not less than “AA” under the “Approved Investment” category, which denotes highest credit worthiness).[xi] The allowance is in line with the Government’s objective to bolster the investment in the trusts. However, IRDAI has also mentioned that insurers cannot invest more than 10% of outstanding debt instruments in InvITs and REITs and the investment by the insurers should not exceed 3% of their total fund size.
Lastly, though the Government, in its previous budget of 2020 had abolished the Dividend Distribution Tax (DDT) to shift incidence of taxation of dividend income in the hands of investors. yet in order to further incentivise the investment in InvITs & REITs, it has also decided to exempt dividend payments to these trusts from Tax deduction at source (TDS) in the Budget of 2021.
ANALYSIS & CONCLUSION
Through the aforementioned changes, a massive program for monetisation of completed/ running projects will open up more investment avenues or fresh funding for REITs & InvITs in India. These trusts can prove to be attractive sources of investment for the already stressed real estate and infrastructure sector. In particular, the private sector participation is expected to increase. Overall, since the infrastructure sector has a multiplier effect, it will further boost allied sectors and help aid overall growth in the economy. More importantly, IRDAI’s stance and the tax exemption will provide lucrative investment opportunities to the foreign investors. Also, the amendment under the SCRA has brought clarity about whether FPIs could subscribe to the debt instruments issued by these trusts. This is imperative as Schedule 1 of the Foreign Exchange Management (Debt Instruments) Regulations, 2019 (“Debt Regulations”) did not provide for it. The Debt Regulations provide for the list of debt instruments which can be purchased and sold by a person resident outside India and has been issued by the Reserve Bank of India in exercise of the powers conferred by section 6(2)(a) read with section 47 of the Foreign Exchange Management Act, 1999, and in supersession of the Foreign Exchange Management (Transfer of Issue of Security by a Person Resident outside India) Regulations, 2017. The investment regime will be clearer if the Reserve Bank of India amends the above regulations and provides for the investment by FPIs in the debt securities issued by the trusts. In all, the amendments will benefit the investors who prefer more debt and who do not necessarily need to take equity exposure. Lastly, since the AIFs are becoming the preferred source of finance for investment in India, it can be expected that due to the amendments, the private equity cum venture capital industry will see a boom by way of raising more funds from foreign investors. In addition, allowing for direct investment in Indian pooling instruments rather than routing the investments will be welcomed by the investors.
The year 2020 not only saw the world being brought to a standstill but also catapulted the process of vaccine development. In August of 2020, Sputnik V, got approved by Russia and became the first vaccine in the world to get a regulatory approval by any country.[i] Following it, USA’s ‘Operation Warp Speed’,[ii] gave the world two other vaccines- one developed by Pfizer and the other by Moderna, in December 2020.[iii] Simultaneously, Sinopharm and Oxford-AstraZeneca’s vaccine got regulatory approval in December 2020 in China and the United Kingdom, respectively.[iv] Thereafter in January, AstraZeneca partnered with the world’s largest vaccine manufacturing firm, Serum Institute of India (SII),[v] and thus, the major vaccine producers by the beginning of 2021 were UK, USA, India, China and Russia.
The eventual problem to arise was how to distribute the vaccines to the ‘Lower and Middle Income Countries’ (LMICs) which might not be able to afford them. This thought provoked Global Alliance for Vaccines and Immunisation (GAVI) to establish the COVAX facility,[vi] with the aim of procuring and exporting vaccines to the countries in need. The initial goal was to distribute 1.8 billion vaccines to 92 LMICs by the end of 2021 and deals were also made to that effect with candidates like Johnson & Johnson, AstraZeneca, GSK, SII and Pfizer, [vii] but not a lot has fructified. Due to the resurgence of a third wave of coronavirus in India, about 140 million doses, which were to be exported by SII to COVAX, will now be held back,[viii] following which the World Health Organisation (WHO) had to roll out a ‘call for action’ in May 2021, wanting the vaccine exporters to amplify their export as a shortfall of about 190 million vaccines was being faced by COVAX.[ix]
Contemplating a potential shortage of vaccines and the eventual ill effects of rise of different variants, India and South Africa had proposed a waiver, in October 2020, from certain provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) i.e. copyright, patents, industrial design and protection of undisclosed information.[x] The proposal, having initially met with a lot of criticism and naysaying from a host of countries, was revised later to include a waiver only for 3 years and is now undergoing negotiations.[xi] But the question is why, after 184,076,141 cases and 3,983,564 deaths worldwide, did the TRIPS waiver face obstacles? And why exactly are the pharmaceutical giants in a frenzy?
Vaccines and Intellectual Property
A lot of capital goes into the research and development of a vaccine and the same is then recovered by these manufacturers by maximizing its price, once the product is rolled out in the market. This is exactly why Covaxin, whose manufacturing cost is estimated to be about ₹40,[xii] is being sold at ₹1,415 in the market.[xiii] Likewise, Covishield, whose manufacturing cost is expected to be about ₹30,[xiv] is being sold at ₹780 in the market.[xv]
A patent provides a legal recognition to this right of the manufacturer and grants him a monopoly in the market, as no other manufacturer is allowed to produce a patented medicine without the permission of the patent holder.[xvi] It is also ethically justified to allow a person recover whatever he/she has spent on developing a product, therefore, intellectual property should be protected. But with patents, there entails a trade-off between dissemination of knowledge and an incentive to innovate which can have a catastrophic impact on LMICs which cannot afford patented vaccines. For example, pharmaceuticals took the Government of South Africa to court when it passed a law permitting inflow of generic medicine rather than buying expensive patented medicines from western manufacturers.[xvii] Many countries did not support South Africa’s act as it had an adverse impact on the pharmaceutical industry and could deter it from innovating in the future.[xviii]
Once the TRIPS waiver is passed, many generic medicine manufacturers will enter the arena and although a quintessential perfect-competition can only be found in textbooks, a situation very similar to perfect-competition market structure will be created since a homogenous product will be manufactured. For instance, India having a robust infrastructure of about 1400 WHO-GMP approved pharmaceutical Plants,[xix] and 253 European Directorate of Quality Medicines (EDQM),[xx] approved plants, will witness multiple generic-vaccines being produced. Thereby, multiple ‘generic brands’, from India and abroad, will start producing the same or similar type of vaccine and a situation very similar to perfect-competition will be created.
Graph depicting a monopoly and a perfect competition.[xxi]
As visible in these two graphs, the producer surplus i.e. profit is lost in a perfect competition as there are multiple sellers, having perfect knowledge of the product, selling a homogenous product and having no entry and exist barriers and therefore all sellers in a perfect competition are price takers and no seller can individually influence the price in the market. Whereas in a monopoly, a single seller is able to influence the price in the market and can therefore maximize his producer surplus and recover the costs incurred in research and development (R&D).
Also, in a monopoly, the demand and supply forces do not tend to be in equilibrium as the monopolists restrict the supply to surge the prices. This very practice creates inefficiency in market as the product is overpriced and accordingly a large part of the populace who cannot afford it will shift to an inferior or a near-substitute. Therefore, unlike a perfect-competition, a monopoly gives rise to a dead-weight loss and causes a market failure. It is thus desirable to have a perfect competition among the vaccine manufacturers than to let the monopolists charge exorbitant prices.
Thus, if the patents are waived, many generic medicine manufacturers will start producing the vaccine, the market will enter into a perfect competition and the patent-holders will lose their surplus and thereby lose their entire R&D costs. This is the very reason why pharmaceutical giants like Pfizer,[xxii] are against the TRIPS waiver proposed by India and South Africa.
Resolving the conundrum
The question that poses itself is- Whether ‘Intellectual Property Rights’ can supersede a public health emergency? And whether the vaccine manufacturers are actually having a ton of funds at stake?
The International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR) puts an obligation on the countries to recognise the ‘right to health’ of individuals to the highest attainable standard.[xxiii] The Covenant also stipulates that any steps taken, necessary, to avoid, treat and control an epidemic shall be considered within its ambit.[xxiv] Therefore, the TRIPS waiver is warranted by law as it is a necessary step taken by countries to increase accessibility of vaccines to treat and control the widespread epidemic. Moreover, the rights held by a patent holder are not absolute as Article 31 of the TRIPS agreement stipulates that any member state can put a patented object to some use without the permission of the patent holder in a case of extreme urgency. Thus, in situations of extreme urgency as the current pandemic, the TRIPS waiver is legally bound to succeed and any obstruction posed to it shall only add to the havoc being wrecked by novel variants of the virus.
Another interesting aspect is that there is not as much money at stake as is being claimed by vaccine manufacturers. The American giant, Moderna received a funding of about $2.15 billion from the US Government as R&D and supply funding.[xxv] Likewise, BioNTech, the partner of Pfizer, received $445 million in government funding from Germany and secured a deal in the USA of about $2 billion for 100 million doses.[xxvi] Even AstraZeneca has received, in addition to a $1 billion funding from the US Government,[xxvii] a £65.5 million funding from the UK Government.[xxviii] Therefore, the claim that a TRIPS waiver will disincentivise any further ‘Research and Development’ is a half-baked story as candidates have already received adequate or equivalent funding to accelerate their research.
Moreover, although the Indian Government had not paid any amount for research to SII and BharatBiotech, it has pledged to grant an advance of ₹3,000 and ₹1,500 crores, respectively, to ramp up their vaccine production,[xxix] which is adequately covering the expenditure of ₹350 crores, as being claimed to have been spent by BharatBiotech on human trials.[xxx] Therefore, the Indian players too have their ‘research costs’ covered and there is absolutely no reason why they should oppose the proposal.
Both the claims that TRIPS waiver will violate the provisions of TRIPS agreement and that it will create a dangerous precedent which would deter any pharmaceutical company from undertaking the risk of investing millions in R&D, are being masqueraded as truth by the pharmaceutical giants to fill their coffers.
However, the TRIPS waiver would not be a panacea for this pandemic as it would only assure entry of generic manufacturers and not solve the problem of shortage of vaccines, with immediate effect and/or lack of cold storage in LMICs. There are some issues which can arise with the entry of generic manufacturers like rise of counterfeit and sub-standard vaccines which requires to be taken a note of.
The author believes that till the time the waiver is passed and different players start producing vaccines, High Income Countries with excess of vaccine doses should divert the same to COVAX and contribute to ending the proliferation of the virus. Subsequently, deploying UN medical officers in LMICs to supervise vaccination drives and curb any wastage thereof would be the most efficient way to tackle the pandemic.
Pink Tax is a gender-based price discrimination on products in a market. In simpler terms, Pink Tax is a higher amount paid by women consumers on gendered services and goods. For example, on grooming services, laundry services, clothing, sanitary and healthcare products. The term ‘Pink’ has its stereotypical association to femininity and highlights the price disparity purely on the grounds of gender. The imposition of Pink Tax conforms with the androcentric ideas and creates an economic imbalance in the society as it leaves women with less buying power and promotes sex-based pricing of products in a society.
A 2015 report by the New York City Department of Consumer Affairs compared approximately 800 products with a clear distinction of male and female products sold across 90 stores in New York in offline and online mode.[i] The findings of the report indicate that products related to women, including goods and services, on an average are 7% costlier than the similar products available for men. Women are charged 13% more for personal-care products than other consumers. 42% of the time, products related to women were priced higher as compared to only 18% for men. In every sector, female consumers are likely to pay more than the male consumers. As a result, a 30-year-old female must have paid an estimate of $40,000 in pink taxes.[ii]
A Bill was introduced in New York in 2019 to eradicate Pink Tax which prohibited businesses from charging prices of ‘a substantially similar or like kind’ product based on the gender of a person.[iii] The Bill specified similarity of products to be at least 90% of the same components used in the male products of the same brand.
A similar Bill called the ‘Pink Tax Repeal Act’ was introduced in the House of Representatives in the United States of America which made it “unlawful for any person to sell in interstate commerce any two consumer products from the same manufacturer that are substantially similar if such products are priced differently based on the gender of the individuals for whose use the products are intended or marketed.”[iv] The Bill also defines ‘substantially similar products’ and the same includes goods and services.
Understanding Pink Tax in India
A survey revealed that 67% of Indians were unaware about the existence of Pink Tax.[v] Another research conducted in Amritsar (Punjab, India) shows the bitter reality of Pink Tax in India.[vi] The study covers 25 product categories of various outlets in the city. The difference between prices for men and women on these products ranges from an average of ₹50 to as high as ₹1000. Pink Tax is not a legalised tax, but it describes the veiled practice of gender discrimination by charging higher prices from the female consumers for substantially similar products available at much lesser price to the male consumers in an economy.
Pink Tax is different from taxes levied on luxury items. The main argument for protests on the imposition of 12% Goods and Services Tax (hereinafter referred to as “GST”) on sanitary napkins in 2017 was that it was treated as a luxury item rather than a necessity like the contraceptives or viagra that were exempted from GST.[vii]
Economic Justifications for imposition of Pink Tax by Manufacturers
Imposition of higher tariff rates on imported products for women has been an excuse for charging higher prices. In the United States of America, women’s imported clothing is taxed at 15.1% while men’s imported clothing is taxed at 11.9%.[viii] However, the United States Supreme Court in Totes-Isotoner Corp. v. United States[ix]held that charging higher tariff (14%) for men’s gloves as compared to 12.6% for gloves for other people was unconstitutional and violated the Equal Protection Clause.
Product and Retail Differentiation
The justification of product differentiation on the basis of better Research and Development practices, quality, scent, packaging, variety etc., has often been resorted to by the manufacturers.[x] But, this justification may not be logical when out of two products with similar components and similar usage result, one of them charges a higher price merely because of its marketing toward one particular gender.
Price discrimination and willingness-to-pay
Willingness-to-pay is the maximum price a consumer shall pay for a product or service to obtain maximum satisfaction from their need for the product. In order to realise higher profits, the manufacturers set the price of their product close to the consumer’s willingness-to-pay. Price-discrimination allows the business to do so, as it levies a higher rate for the product on consumers who have a higher willingness-to-pay and a lower rate on consumers whose willingness-to-pay is low.
In a society, men are considered to be rational decision makers where their taste and preferences remain unchanged, and their decisions are governed by the price of a product.8 Whereas women are thought to be governed by their ‘desire’ over ‘need’ for the product. In such cases, even when the prices of their ‘desired’ products changes, they would stick to their taste and preference of the product. It is assumed that in a market for women, the other factors i.e. taste and preference of a consumer influence the market more as compared to their price, hence women being less elastic to changes in price.
Price discrimination may also be due to the preconceived bias that women are oblivious to the existing market rates. For instance, a woman was charged ₹90 for an electrical item while her male driver bought the same item from the same shop at ₹70 on the next day itself.[xi] The Competition Commission of India (hereinafter referred to as “CCI”) while dealing with the issue of discriminatory prices in Saurabh Tripathy v. Great Eastern Energy Corporation Limited[xii] observed that “… lack of (price) uniformity in itself cannot be a ground to hold discrimination unless the same is demonstrably shown to be a result of abuse treating similar set of customers differently.” This principle was reiterated by the CCI in Noida Software Technology Park v. Star India Pvt. Ltd.[xiii] While the facts may materially differ, this pronouncement by the CCI is seminal in considering the nascent stage of Indian jurisprudence in the realm of price discrimination on the basis of gender.
Implications of Pink Tax
Pink Tax promotes sex-based discrimination in the society. The term ‘discrimination’ usually means unfair prejudicial treatment of a person or a group of people over others. Globally, only 46.9% women participate in the workforce.[xiv]Whereas the participation of Indian women in the labour force is a meagre 21%.[xv] In the Global Gender Gap Report 2021 by the World Economic Forum, India has been ranked 140th out of 156 nations slipping 28 ranks from last year’s 112th position.[xvi] The wage gap between men and women was recorded to be 19% in 2019.[xvii] This wage gap widens to 20-30% for skilled and highly skilled jobs. Such a wage gap as well as the low participation of women in the workforce drastically reduces a woman’s buying power in the market and promotes discrimination in the society as women earn less and pay more.
The Future Course of Action
‘Pink Tax’ is a relatively new term in the modern society. The awareness among consumers will play a crucial role in the identification of the unfair Pink Tax on daily products. Multi-national brands like Steve Madden are taking steps to educate the consumers regarding the discriminatory tariff rates for products used by women.[xviii] The willingness-to-pay justification implies that a rational consumer is aware of the choices available to her in a market and makes an informed decision suiting her best interest and needs. This implies two things: Firstly, a consumer is well-informed and secondly, on the basis of this information she forms a decision based on rationality. However, this inference may be faulty as a consumer may not be fully aware of the choices available to her in the market. This may be due to the marketing of certain products as catering to women needs or unawareness about the other alternatives available in the market. A classic example of informed consumers standing against the Pink Tax would be the exemption of GST on tampons in India after a huge social-media hue and cry as well as various suits instituted by women activists and protestors.
Further, an encouragement to purchase unisex products may nip the problem in its bud. Genderless products annihilate the bifurcation of products into two genders. While the biological differences cannot be ruled out, unisex products like clothing, perfumes, toys, etc. can be promoted to reduce the Pink Tax.
Moreover, A legislative action akin to the New York Proposal or Pink Tax Repeal Act can be adopted by nations to reduce this disparity in the society. A timely issuance of guidelines and measures by the Government can provide a direction to the manufacturers and businesses.
The imposition of Pink Tax is an unethical practice as it burdens one gender with higher unfair prices for similar products and services. From a socio-economic point of view, Pink Tax widens the gender discrimination in a society and reduces women’s buying power in an economy.
[i] “From Cradle to Cane: The Cost of Being a Female Consumer”, New York City Department of Consumer Affairs, 2015.
“Their needs are their demands. The demands are matters of right and not of philanthropy. They ask for parity, and not charity. They claim their constitutional right to equality of status and of opportunity and economic and social justice. Several bridges have to be erected, so that they may cross the Rubicon. Professional education and employment under the State are thought to be two such bridges.”[i]
-Justice O. Chinnappa Reddy
Introduction and Scope of ‘Economically Weaker Section’
The Constitution of India endows its citizens with certain fundamental rights to ensure equality of status and opportunities.[ii] It provides reservation to the individuals belonging from economically weaker sections in order to provide jobs and seats in the institutions of Higher Education within the general category. The ‘Economically Weaker Section’ is a term used to allude those citizens or families with income below a certain threshold. The people in India are discriminated against based on their inadequacy. After recognising the prejudice faced by these people, the Constitution of India defined the principle of reservation to Scheduled Castes, Scheduled Tribes and Other Backward Classes Thereafter, a debate followed and the outcome of the same resulted in the Parliament granting reservation to the Economically Weaker Sections among the general category candidates.
Looking into the current situation of the transforming nation, it becomes really tough for an individual belonging from any Economically Weaker Section to stand in competition with the privileged class. By ‘the privileged class’, the author means the section of society which has the adequate amount of resources to gain education in the desired field and subscribe the desired opportunity. The statistics show that up to 115 million Indians are living in extreme poverty which is 6% of the world’s total population. This suffices to state the economic down flow in the nation.[iii] The individuals belonging to the Economically Weaker Sections do not have sufficient resources to get an education in the desired field. This was considered as the basis of providing reservation to the Economically Weaker Section of the society to uplift them by providing them with equal opportunities that are enjoyed by other privileged section of the society.
Definition of Economically Weaker Section
The definition of Economically Weaker Section is not mentioned in any of the provision of the Constitution of India. The said section can be defined on the basis of its characterisation, which can be done by the various plans run by the Government of India. However, generally, Economically Weaker Section in India are divided in several subcategories of individuals belonging to the General Category having an annual income under the bar of 8 lakh rupees and who do not belong to any other Scheduled Categories and other defined backward classes.[iv] The benefit of reservation can be utilised by an application when he does not have:
5 acres of agricultural land or above;
Residential land of 1000 sq. ft. or above;
Residential plot of 100 sq. yards or above in notified municipalities; and
Residential plot of 200 sq. yards and above in areas other than the ones in the notified municipalities.[v]
History: Constitutional Amendments and Judicial Precedents
Mr. Thaawar Chand Gehlot, Hon’ble Minister of Social Justice and Empowerment, Government of India, introduced the Constitution (One Hundred and Twenty-fourth Amendment) Bill, 2019 in the Lok Sabha on January 8, 2019.[vi] The Bill seeks to provide for the advancement of Economically Weaker Sections (“EWS”) of citizens. The EWS reservation is required since it encourages social equality by providing opportunities in higher education and employment to those who have been deprives of equal opportunities due to their economic status. The Constitution (One Hundred and Twenty-fourth Amendment) Bill, 2019 received the Presidential assent on January 12, 2019, and it came to be known as the Constitution (One Hundred and Third Amendment) Act, 2019.[vii] The said Act provides for the advancement of the Economically Weaker Section of the society and the State was authorised to make reservation in higher education and affairs of public employment solely on the basis of economy. By virtue of the said Act, amendments were made sin Article 15[viii] and 16[ix] of the Constitution of India by inserting a sixth clause in both the provisions.[x] According to the Act,10% reservation was provided to the one who belongs to the EWS category.
Amendment to Article 15(6) of the Constitution allows the State to make special arrangements for the advancement of economically vulnerable people, including reservations in educational institutions. Reservations can be made in any educational institution, including both aided and unaided private schools, with the exception of minority educational institutions, according to the law.[xi] The advantages of the EWS reservation were only applied to candidates in the General category who were not covered by the current reservation scheme prior to the amendment, as specified in Article 15(6)(a) of the Constitution.[xii] The idea of social backwardness underpins this reservation for economically disadvantaged groups. Furthermore, students belonging to the EWS category are entitled to 10% of seats in Central Government Educational Institutions and private educational institutes under Article 15(6)(b) of the Constitution of India.[xiii] This 10% ceiling is individualistic of the ceilings on subsisting reservations. Article 16(6) of the Constitution of India[xiv], on the other hand, requires the State to make provisions for reservations in appointment. In addition to the current reservations, these clauses would be subject to a 10% ceiling.
In the case of Indra Sawhney v. Union of India,[xv] more than 50% of the seats in educational and jobs were reserved for SC, ST, and OBC citizens, who account for 70% of the country’s population.[xvi] According to the data given by Planning Commission, more people in the underprivileged society (belonging to SC, ST and OBC) were led over and above the poverty line between 2004-2005 and 2011-2012 than in the other social group.[xvii] It was pleaded in the case of Ashoka Kumar Thakur v. Union of India & Ors[xviii] that the economic criterion can be a relevant criterion for affirmative action under the Constitution. The Supreme Court discussed the characteristics of backward classes in the case of K. C. Vasanth Kumar v. State of Karnataka.[xix] The same was discussed in response to the appeal of the government of Karnataka that the Court set guidelines for the task of the Commission that was to be constituted. The two tests that should be applied for spotting backward classes was underlined by Chandrachud, J. as the following:
a. In terms of backwardness, they should be equivalent to the Scheduled Caste and Scheduled Tribe.
b. They must pass the means test, which is an economic backwardness test administered by the State Government in the event of widespread economic backwardness.
On the other hand, it is ruled by Desai, J. that economic backwardness is the only criterion that can be rationally conceived.
Constitutionality in light of Existing Law
The doctrine of equality has a lot of different aspects. It’s a dynamic and ever-changing definition. Preamble being a part of the basic structure doctrine as held in the case of Kesavananda Bharti v. State of Kerala,[xx] the basic structure states that the state should secure to all its citizens “Equality of status and of opportunity”. In exercising the power conferred by Article 368 of the Constitution, the Fundamental structure of the Constitution cannot be amended. Thus, the reservation provided to EWS is in consonance with the Doctrine of Basic structure. Thus, the reservation given to the EWS category is in effect, a privilege. This privilege is based on the principle given by the Greek Philosopher Aristotle that equals should be treated equally and unequals unequally.[xxi] This means individuals should be treated the same, unless they differ in ways that are relevant to the situation in which they are involved.
Article 14 of the Constitution states that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India.[xxii] Equal protection of law says that it is required for the State to undertake policy decisions or enact laws for a class of person in order to uplift them and to improve the standard of their lives by the way of enactment of various laws and statutes by providing reservation in public employment, in admission or providing some facilities or concessions to an under privileged section. In the case of Charanjeet Lal Chaudhary v. UOI,[xxiii] it was held that the equal protection of law permits reasonable classification but it forbids class legislation.[xxiv] As a result, a fair classification is not only reasonable but also necessary for the society to advance. Thus, classification on the basis of economy comes under the reasonable qualification as the people belonging to EWS do not have equal opportunities to get education or employment in the desired field.
Article 15 of the Constitution[xxv] prohibits discrimination on the basis of religion, race, caste, sex, or place of birth. However, the same Article does not exclude the State from making special arrangements for women or children. It also requires the government to make special arrangements for socially and economically disadvantaged groups in order to help them advance.[xxvi] Article 16 guarantees equal opportunities in public jobs and gives the authority to Sate to make special arrangements for backward classes, under-represented states, and SC and ST for public opportunities. Accordingly, the author wants to contend that the amendment regarding the reservation to EWS is constitutionally valid.
Conclusion and Suggestions
Concluding the aforementioned contentions, the author would like to state that although the State implemented the reservations for the persons belonging to the Economically Weaker Sections to help the needy, the law was challenged and a controversial issue emerged on various constitutional and judicial grounds.
Though the policy was introduced in 2019 it still has some lacunae on the account of effective implementation. With the EWS reservation amendment, it is estimated that a significant percentage of General Category applicants are expected to qualify as economically weak. As a result, the number of vacancies available to those in the EWS group may be reduced.
Looking into the current critical situation of the suffering nation, the author would like to suggest some points:
There should be a separate Committee to check that the assignment of EWS Certificate is in accordance with the Eligibility Criteria.
There should be revision in the criterion to avail the EWS recognition, not only the economic parameter but also the individual’s eligibility for the employment and admission should be considered.
The reservation is being implemented in respect of recruitment for civil posts and services in the public sectors and admission in educational institutions but it shall also extend to provide employment opportunity in the private sector as well.
The higher educational institutions need adequate funding to balance the skewed student-teacher ratio as there is increase in seats for EWS category without corresponding increase in the teaching positions.
At last the author wants to conclude that it is high time for reservations to be provided not only for political reasons, but also to properly address the plight of the underprivileged sections of the society in order to achieve the original goal of the Constitution of India.
[i] K.C. Vasanth Kumar v. State of Karnataka, 1985 SCR Supp. (1) 352.
The role of the State in administering governance has always been a subject of debate particularly regarding the extent of control over the affairs of the State and the responsibilities therein. One of the functions performed by the State nowadays is providing subsidised goods and services to the businesses, particularly to those who cannot afford such goods and services at their market price. These are provided to them at a lower rate. Valuation and pricing of the goods is borne by the State. However, state subsidies have often run into legal trouble with questions being raised over State’s intention to appease the impoverished class by providing them goods at a subsidised rate. Further, questions have been raised over its constitutionality as to whether it violates Article 14 of the Constitution of India, and as to why non-beneficiaries should pay taxes for services they are not allowed to avail.
This research tries to answer such questions from Plato’s philosophical point of view regarding his conception of law. Although these questions and issues find their basis in legal interpretation, Plato’s philosophical conception of law does offer an insight into the answers of questions, which the courts too have emphasised while deciding legal issues. The said philosophy vis-à-vis the aforementioned issues have been dealt with in this research.
IS THE CONCEPT OF STATE SUBSIDY INCONSISTENT WITH ARTICLE 14 OF THE CONSTITUTION OF INDIA?
Article 14 of the Constitution of India, dealing with the right to equality is one of the fundamental features of the Constitution of India and, invariably, forms part of the basic structure of the Constitution of India. The Article reads:
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.
The cursory idea behind Article 14 of the Constitution of India is that the State shall treat each person equally before the law, the essential purpose being to combat arbitrariness of State action because an action that is arbitrary, must necessarily involve negation of equality. Further, the concept of rule of law rests on the premise of treating individuals equally, thus, the obligation on the part of the State to implement Article 14 of the Constitution of India becomes even more necessary.
The concept of State subsidies, however, seems to be at odd ends with the objective of Article 14 of the Constitution of India, whereby the State provides certain essential goods at subsidised rates to the people who cannot afford such goods at their market price. This concept has, over the years, been a subject of discussion among different schools of thought having their unique perspective about the concept. Some argue that the State should not indulge in granting subsidies to a class of people as it violates the principle of equality under Article 14 of the Constitution of India; while some defend the acts of the State on the basis that in a country like India where a major chunk of its population is below the poverty line, it is the State’s responsibility to look after its citizens and devise ways for reducing existing inequalities in the society.
While this debate is the topic of discussion in the legal parlance and is for the Judiciary to decide, the same issue when looked at from a jurisprudential point of view, offers a deeper insight into the purpose of the law and the obligation of the State enforcing such law. One of the jurists who has extensively dealt with the aforementioned issues is Plato, who is known for his works relating to the purpose of legislation and the responsibilities on the part of the State. In his works ‘Republic’ and ‘Laws’, Plato analyses what a State should to do in order to enforce the legally established laws even though there is a distinct difference in the ideas of both of these works.
Plato’s Views On Law
The answer to the question whether State subsidies are inconsistent with Article 14 of the Constitution of India, too lies in the works of Plato. He considered views of other people that law is of a divine origin and humans have to find a path to it and that it is a product of impersonal social and natural forces. Plato was of the opinion that all these views were partly correct, however, he regarded the concept of law in the nature of a compromise between the individuals and the conduct to the circumstances of the external world.
More specifically, Plato considered the concept of laws to be genetic and teleological in nature to achieve a particular desired end i.e., to correct the inequalities in the relationship between society and its environment. The precise end of the law is to achieve group unity among the masses which cannot be obtained if minority groups are disregarded or by legislating for single classes. This view of Plato leads to the position that if the function of law as the interest of the entire community is observed faithfully, in the end it will yield an understanding of the ideal laws in the world of forms which may then be utilized as models.
This Platonic conception of law for uplifting the minority groups and not disregarding them on the premise of strictly following the principle of equality has been recognised by the courts in several cases. It is now as established principle that ‘equals have to be treated equally and unequals ought not to be treated equally’; while Article 14 forbids class legislation, it does not forbid classification for the purposes of implementing the right of equality guaranteed by it. Thus, Article 14 allows for reasonable classification of individuals and does not strictly follow that everyone must be treated equally.
In context of the question of State subsidies, the Hon’ble Supreme Court too observed that Haj subsidies provided by the Central Government were not discriminatory and thus, constitutional in nature. The Court based its decision on the premise that India is a country with diverse population and if the country were to be kept united, there needs to be tolerance and mutual respect for all the communities and sects.
The decision of the Hon’ble Supreme Court lies on the same lines of the Platonic conception of law and can be regarded as an extension of the same, whereby the State needs to focus on the development of the entire community, and if for that purpose certain special measures are required, then the State adopts the same. This would ensure that the impoverished classes who cannot afford to purchase goods or services at their market price would still be able to purchase them, thereby reducing class inequalities and maintaining balance in the society. It would also ensure that the nation remains united and tolerant towards each other where the rich, having access to the resources, would not be able to exploit the poor for their personal gains. Thus, the role of the State in providing subsidies is really important and cannot be done away with as long as the class inequalities in the society subsist. Also, the views and thinking of Plato in this regard cannot be undermined as the same laid the foundation of the now generally accepted and established principle of increased State responsibility.
CAN NON-BENEFICIARIES BE COMPELLED TO PAY TAXES FOR STATE SUBSIDIES?
The concept of State subsidy is based on the fact that the Government shall provide goods at subsidised rates to the people. The State shall incur the cost of the subsidised goods and such cost is borne out of the Consolidated Fund of India. However, the funds in the Consolidated Fund of India are given by the people to the Government in the form of taxes. Thus, every cost of State action incurred is actually the money of the people of India in the form of taxes paid by them.
With respect to State subsidies, the beneficiaries of such subsidies are only a few, however, the taxes have to be paid by all the people. In such a scenario, non-beneficiaries of the State subsidies often argue as to why they should pay taxes for the services they are not availing or are not allowed to avail. This is countered by the argument that the State does not ask for taxes for subsidies separately, instead, taxes are general in nature. Further, another argument is that laws have to be followed by everyone and one cannot choose to disobey a particular law if the same is not lucrative to that individual.
The basis of the arguments by non-beneficiaries stems from the principles enshrined in Articles 14 and 19 of the Constitution of India alleging that State subsidies are discriminatory and arbitrary. This debate is from the legal perspective. On the jurisprudential basis, Plato opined as to whether people can choose to disobey a particular law if the same goes against the individual. He offers a provocative analysis as to why people should obey a law even if it goes against the interests of a particular individual in a certain case.
Plato’s Conception On Moral Liability
Plato emphasised the idea of good faith and, to some extent, the notion of honour vis-à-vis the duty to abide by the law. According to him, the duty to abide by a law depends on the moral worth a man possesses in his own eyes and in the opinion of society. He valued obedience to legislation highly for he held that the man whose victory over his fellow citizens took that form had the best claim to rule. He explained his opinion by taking an analogy of the relationship of a father and son. He said if a son is punished by his father for a wrong, the child, in turn, does not hit back at the father in return. Similarly, a good citizen does not undertake to destroy the laws of the country if his country decides or undertakes to destroy him.
In his work, he further mentions about the trial of Socrates and choices he made vis-à-vis the obedience of laws before his execution. Crito suggests to his friend, Socrates, who is in prison awaiting execution, that his escape can be arranged. Socrates refuses to disobey the law and thus, wrong his country, even though the law has wronged him. Socrates simply states that a man ought to do what he has agreed to do, provided it is right; he ought to not violate his agreements. He adds that the State cannot exist if its laws are flouted and the decision of its courts made invalid and annulled by private persons.
He further adds that once the society collectively follows the established laws, it would lead to an increase in the unity among the members of the society. That unity implies that the majority realize that it is in their own interest to obey the laws. Society does not act against its own will when it obeys its laws; when it does obey unwillingly, they will be soon abolished. Plato believed that once general respect was secured for a particular law, it would be implicitly obeyed.
The same methodology is applicable to the modern world as well. The laws are made by the State for the interest of the society. If the members of the society were to disobey them it would create chaos in the society leading to increased uncertainty and insecurity in the society.
In light of the State subsidies, even though not all people are the beneficiaries of such schemes, for the overall betterment and progression of the society, it is essential that contribution to the funds is made by every member and not just by the beneficiaries of the subsidies. Plato has often emphasised on the ideal duty of the society to collectively help in its development by abiding by the laws. He mentions that law is not concerned with the special happiness of any class, but with the happiness of the whole society.
The same view was adopted by the Hon’ble Supreme Court in the Haj subsidy case wherein it dismissed the petition challenging the Haj subsidy. The Court observed that the laws are general in nature and have to be followed by every member of the society. Thus, the contention of the plaintiff that the non-beneficiaries should not be compelled to pay taxes was rejected.
Further, the Court added that the amounts used for subsidies by the State are generally a small portion of the taxes collected by them. Thus, a small portion of the same for the general interest of the society do not cause discrimination to the non-beneficiaries of the scheme. Thus, Plato’s views about obedience of the law well established by the State is well reflected in the judgement of the court. The person, accordingly, cannot escape the liability of not paying the taxes or abiding by any law even if the same causes any prejudice to the interests of the individual concerned. Invariably, if the person chooses not to obey the same, penal consequences would be attracted which could cause great loss to the person concerned.
Plato’s conception of law helps us understand that the concept of State subsidies is not inconsistent with the idea of Article 14 of the Constitution of India because the basic purpose of the law is to reduce the inequalities in the society and if such objective can be achieved through such subsidies, then the same shall be considered as reasonable classification under the constitutional provision. Further, the non-beneficiaries of subsidies cannot put forward the argument that since they are not availing the subsidies, they should not be taxed for the same purpose. This is so because Plato opined that if everyone were to disobey laws prejudiced to them, it would create chaos in the society.
Thus, Plato’s principles are relevant even today and have been emphasised by the courts in several cases as well. His contribution to the field of philosophy cannot be undermined as the same has played an instrumental role in shaping the purpose of law and the role of the State in enforcement of the laws.
The Supreme Court of India has always unfailingly come to the aid of the citizens whenever the legislature and the executive have failed to fulfil their obligations. Commandeering the process of effective dispensation of law, the Apex Court of the country took suo motu cognizance[i] of the humanitarian crisis following the “unpredicted” wave of COVID-19 pandemic on 24th April 2021, thereby, urging the Central Government to review its policies in wake of the national emergency in the country.
Taking into account the upsurge of the COVID cases in the country and the declining availability and the production of drugs like Remdesiver and Tolicizumab, used to cure COVID-19, the Apex Court opined the Central Government to explore the possibilities of granting of compulsory licenses for these drugs under the Patents Act, 1970. The Central Government while negating the possibilities to grant of compulsory licenses stated in its affidavit that it is engaging itself with global organizations at diplomatic level and therefore, it would be counter-productive at this stage to reach an amicable solution through granting Compulsory License.
The authors through this piece of research will argue as to why granting compulsory licenses for these drugs can prove beneficial to fight the surge of COVID cases in India and that otherwise, the ways of requesting aid on diplomatic levels would only prove to be against the policies of Aatma Nirbhar Bharat of the government and will be fatal to fight against the present and the impending third wave of COVID-19 in India.
THE IMPETUS BEHIND THE WRIT PETITION
The Supreme Court in the aforesaid Writ Petition, vide its order dated 30-04-2021 requested the Central government, if at all they can consider invoking its powers and jurisdiction under Sections 92, 100 and 102 of the Patents Act, 1970 (Act, 1970) for granting compulsory licenses to more indigenous manufacturers to augment the supply of COVID treating drugs in the country which has seen an upsurge to the extent of more than 4,00,000 COVID positive cases per day in the months of April and May, 2021.[ii]
To this effect, section 92 of the Act, 1970 enumerates three instances when the Central Government by way of an official gazette can grant compulsory license to the patents – national emergency, extreme urgency or public non-commercial use. Further, sections 100 and 102 of the Act, 1970, grants the Central Government the power to use inventions for certain specified purposes. The primary objective behind these provisions is to make an invention affordable to public thereby serving their interests.
Acknowledging the precariousness of the present situation in the country and the shortage of supply of the patented drugs that have proved beneficial for treating COVID patients, the Supreme Court solicited the Centre to adopt the compulsory licensing mechanism to augment their production; however, the order of the court is merely directional in nature and cannot bind the Centre.
THE ESCAPIST ASSERTIONS OF THE CENTRE
To the query put by the Apex Court, the Centre filed an affidavit wherein it has encapsulated its reasoning that M/s Gilead, U.S. which is the patent holder of Remdisivir has given licenses to seven manufacturers and 35 additional manufacturing sites in India.[iii] It was also contended that India was manufacturing 60,000 vials of Remdisivir prior to the recent surge and now the production capacity has been amplified to 2,00,000 vials per day.[iv] Further, as per the affidavit, the MoHFW is hopeful about procuring additional vials of the injection from other countries through its diplomatic relations. Statistically, India will receive 3 Lakhs doses of Remdisivir from Egypt by 1st week of June, 2021 and 1.25 Lakhs from USAID among other smaller doses from various aids.[v]
THE NEED FOR COMPULSORY LICENSING IN THE COUNTRY
At this stage, it would be pertinent to state that after taking into account factors such as delayed reporting, limited testing and unreported positive cases, India, on 30th April 2021 became the first country globally to report more than 4,00,000 positive cases of COVID-19 daily and the active number of cases surpassed the one million marks in the first-half of April, 2021[vi]. Additionally, India in the months of April and May has shown a daily average of 3,00,000 COVID- 19 cases, wherein the active number of positive cases had crossed 25,00,000 by the end of April, 2021.[vii] Figuratively speaking, the total number of COVID-19 cases crossed one crore in December, 2020. After the second wave struck India, the cumulative number of positive cases drastically increased and as per the data shown on the website of Ministry of Health and Family Welfare (MoHFW), the total count of COVID positive cases has nearly reached three crores in a period of 5 months. Hence, it would not be out of place to state that nearly two crore people were affected by the second wave of the pandemic in India.
It stands undoubted that Remdisivir has proved to be an essential drug for treating COVID-19 in India and prima facie reading of the aforesaid conjectures suggests that the Central administration lacks proper facilitation of these drugs and fails to meet the demands of the public. There are several other reasons which make compulsory licensing an essential tool in the hands of the government. This section highlights why compulsory licensing is the need of the hour-
A. Article 21 of the Constitution of India: Considered to be most important facet of our constitution, the right to life has evidently evaporated during the second wave of COVID-19 in India. India is experiencing a fatality every two minutes and the lack of access to the COVID treating drugs has only worsened the situation. This violates the right to life of the citizens of India and the right of health of the people affected by COVID-19. The Supreme Court has reiterated in a number of judgements that right to health forms an intrinsic part of Article 21 because a person’s health makes his life meaningful and purposeful, thereby making it an important facet of life. Therefore, it is the State’s responsibility to preserve and protect it.
It is a situation of national emergency as there is constant surge in the number of deaths. The same has been acknowledged by the Indian judiciary as well the Indian Drugs Manufacturers’ Association. It is a matter of right of the people to receive proper infrastructure and requisite medicines in order to ensure their survival.
B. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS):India is a signatory of the TRIPS Agreement since 1994 and according to Article 7, the main objective of the Agreement is to protect the rights of the patent holders and to promote innovation and technology between the producers. The same provision also suggests the dissemination and promotion should be such that there is economic and “social welfare”. Further, Article 8 of the Agreement allows the member nations to adopt such laws and measures that help in catering to public interests in areas of vital importance.
The Doha Declaration was adopted in 2001 by the member nations wherein public health, access to medicines and research and development in this regard were given vital importance thereby, allowing compulsory licensing of medicines. The said provisions were incorporated in the light of need for public welfare in case there is national emergency which thereby, manifests the importance of access to medicines by people. India being a signatory to the Agreement has ardently obliged to the provisions of the Agreement at the International level however at the domestic level there seems to be a confusion as the Government is seen to be supporting a non waiver of patents for certain drugs.
C.Unaffordable pricing of medicines: Owing to the COVID treating drugs being patented in other countries, there is shortage in their production of the same. These drugs are being hoarded in black markets, which has further, led to their procurement possible only to a certain section that is ready to pay extravagant prices. The Indian courts have set stringent standards of punishment for the black marketers, it unfortunately is not the only way to curb black marketing where the cost of a single vial of Remdisivir has peaked Rs. 70, 000 at one instance.[viii]
Compulsory licensing will help in manufacturing of generic medicines which will be available in the market at low prices. It will help in putting a cap upon the prices of the medicines by inducing competition in the market and will further; increase the production of the same. The case of Bayer Corporation v. Natco Pharma Ltd.[ix] can also be seen in a guiding light which insisted that compulsory licensing induces competition in the industry and thereby helps in lowering the prices of essential drugs in the market.
D. Economic ramifications:Non-availability of drugs in the market has led to black marketing owing to which the drugs are sold at exorbitant prices. Such prices have resulted in considerable drain in the pockets of people especially, the poor. Each year, around 20 million people fall below the poverty line because of the debts accumulated for expenditure on healthcare.[x] The pandemic and non- availability of essential drugs at affordable prices has added to people’s plight, who now, have to face inescapable financial debts and constraints. Licensing of the drugs will augment their production and also, make them affordable to the public.
Further, by invoking its powers, the government itself will have to face lesser constraints in terms of expenditure on healthcare since; it will not have to import drugs from foreign pharmaceutical companies who only seek profiteering from such circumstances.
E. Global emergency: COVID has been declared a pandemic by the World Health Organization because it has affected a large section of population, globally. One of reasons why the Indian government is resisting adopting the compulsory licensing mechanism is because it would affect the Foreign Direct Investment in the country in near future.[xi] The US manifested its disappointment during the Bayers v. Natco[xii] case and Indian government at this point does not want to irk developed countries like the US. However, India having passed the highest number of global infections, it is imperative that the government takes steps that are necessary for safeguarding the Indian population. Many other countries such as Russia, Hungary, Israel etc. have also passed ordinances invoking the compulsory licensing mechanism and have allowed the production of generic medicines.
The Indian population has been hit hard with the second wave of the COVID- 19 and is facing execrable experiences. The only hope lies in proper and affordable medication and vaccination; however, there is shortage of the same. It is incumbent upon the government to safeguard their lives by providing them with the necessary infrastructure and the essential medical requirements. Even if the government is facing shortage of raw materials which the government claims is acting as a constraint in granting of licenses to the other manufacturers, compulsory licensing can create a mechanism which can help in augmenting the production of the medicines afterwards at reasonable rates and can help the government be prepared to fight if the situation worsens. Therefore, the government should wisely use its discretion and safeguard the health and lives of the people.
[i] In Re: Distribution of Essential Supplies and Services During Pandemic (2021) SCC On Line SC 339.
India is the fifth largest economy with a Nominal GDP of $3 Trillion. Coincidentally, it is also the Fifth largest holder of the Forex Reserve in the world.[i] In light of the same, The Indian Foreign Exchange Reserves held and managed by the Reserve Bank of India have recently increased by USD 4.34 billion to a record all-time high of USD 581 billion, for the week that ended on April 9, 2021.[ii]
WHAT IS FOREX RESERVE?
Established in the post World War II era, The International Monetary Fund defines Foreign Exchange Reserves as the External Assets held by the Central Bank or other Monetary authority of a nation, primarily available to finance the Balance of Payment requirements of the country, in order to influence the Foreign Exchange Rate of its currency and to maintain confidence in the domestic markets.[iii]
The Foreign Exchange Reserves are vital to a nation’s economic health. In the absence of adequate reserves, an economy can come to a halt and may be unable to pay for their critical imports, for example Crude oil. Further, during periods of crisis, for example flood or volcanic eruption, when the supply of foreign currency is severed, the local importers exchange their domestic currency with the Central Bank which allows them to pay for the imports. Hence, through these Forex Reserves, the Central Bank maintains liquidity during such cash-strapped periods.[iv] Thus, the ultimate purpose that the reserves fulfill is that they provide a back-up of funds, if under certain circumstances, the value of the domestic currency rapidly de-values or all together becomes insolvent, enabling an economy to effectively cushion a market shock.
Let us take the example of Saudi Arabia to understand the importance of Forex Reserves. Saudi Arabia is a country whose 40% of overall GDP is directly dependent on the export of their vast oil reserves.[v] If the oil prices begin to fall drastically, there is a probability that their economy will suffer. Hence, the economy of Saudi Arabia possesses huge amounts of Forex Reserves which will act as a cushion (especially during the short-run), if such circumstances occur.
In the context of India, the Foreign Exchange Reserves include the following:
Foreign Currency Assets (FCAs)
Special Drawing Rights (SDRs)
RBI’s Reserve position with International Monetary Fund (IMF)
Amongst the four, the FCAs usually constitute the largest component of the Forex Reserves. Economists suggest that it is better to hold the Forex Reserves in a currency which is not one’s domestic currency in order to provide a barrier, in case there is a market shock.
Owing to the fact that USD is the de-facto global currency since it is the most traded in international transactions; the majority of the nations hold their considerable portion of FCAs in USD.[vi] One of the reasons why the USD is viewed as a global currency is because the United States is home to well-developed financial markets and robust legal and political institutions.[vii] As a result, the USD is a relatively stable currency. This means that the transacting parties don’t need to fret over the value of their payments fluctuating wildly.[viii]
The recent report of the IMF on the “Currency Composition of Foreign Exchange Reserves”,[ix] observed that USD is perhaps the strongest reserve currency since 62.7% of the world’s currency reserves are kept in the said currency. Thus, the majority of the nations prefer to hold their FCAs in USD. However, other currencies including the Euro, Yuan and the Yen, amongst others, also makes up certain proportions of the Global Reserves.
Similarly, during the week that ended on April 9, 2021, the FCAs, a major component of the overall reserves, increased by USD 3.02 billion, consequently raising the total to USD 539.45 billion.[x] Possibly, the export industry of India along with the valuation of the Rupee might strengthen against the USD.
The total value of the gold reserves continued to rise by USD 1.30 billion to USD 35.32 billion. The SDRs held by the IMF rose by USD 6 million bringing the total to USD 1.49 billion, while India’s reserve position with the IMF rose by USD 24 million leading to a total of USD 4.95 billion during the reporting week.[xi]
REASONS FOR THE INCREASE:
INCREASE IN FOREIGN DIRECT INVESTMENT
According to the United Nations Conference on Trade and Development (UNCTAD), India was amongst the top 10 recipients of Foreign Direct Investment (FDI) in 2019, attracting USD 49 billion inflows and witnessing a 16% increase from the previous year.[xii] Thus, FDI has been a major source of non-debt finance for the economic development of India. To facilitate the same, the Government of India has adopted an investor friendly policy on FDI which manifests a progressive liberalization across various sectors.
However, it is believed that India has far more potential which can be achieved only through further liberalization and simplification of the FDI norms. Accordingly, the Government has undertaken several amendments in the current regime of the FDI, highlighted below:
Subject to the provisions of Coal Mines (Special Provisions) Act, 2015 and the Mines and Minerals (Development and Regulation) Act, 1957, the Government has permitted 100% FDI under automatic route for sale of coal and coal mining activities including associated processing infrastructure. Such infrastructure would include coal washery, crushing, coal handling, and separation (magnetic and non-magnetic).[xiii]
Thus, the long established monopoly of the Coal India Limited is now stripped-off. It is expected that such liberalization would attract multiple players and would create a competitive market leading to price stablisation in the long run.
Further, even though India possesses the 4th largest coal reserve in the world, it imported 235 million tonnes of coal in 2019, out of which, 135 million tonnes could have been substituted through domestic reserves.[xiv] Hence, with increased production through this policy initiative, India could achieve its long awaited goal of import substitution and tackle the widening trade deficit.
In order to boost the manufacturing sector, the Government of India has decided to allow 100% FDI under automatic route in contract manufacturing in India. Manufacturing activities may be conducted either by the investee entity or through contract manufacturing in India under a legally tenable contract, whether on Principal to Principal or Principal to Agent basis.[xv]
Such activities, similar to manufacturing outsorce, are expected to provide the much-needed impetus to ‘Make in India’ by boosting the manufacturing sector, through establishment of new facilities and improving utilisation of the existing ones. Such relaxation aims at enabling a multiplier effect characterized by higher domestic employment opportunity, rise in the income of the workers and a surge in exports, boosting the economy as a result.
SINGLE-BRAND RETAIL TRADING (SBRT)
The existant FDI Policy provides that 30% of the value of goods has to be procured from India, if the SBRT entity has FDI more than 51%. However, according to the relaxed norms, local sourcing requirements can be met as an average during the first 5 years, and thereafter, annually towards its Indian operations.[xvi] The move is expected to provide greater flexibility and ease of operations for the firms.
Further, the amended FDI norms have liberalized the local sourcing requirements, restrictions imposed on exports and rules regarding raising of funds for global operations. The move is expected to create positive market sentiments for the SBRT and its viability in India.
Brick and Mortar Store Requirement:
Earlier, the FDI Policy required that an SBRT entity is to set up a physical brick and mortar store before it could undertake any retail trading of its brand through e-commerce. This restriction was not in line with with current market practices, hence, through the amendment of Para 188.8.131.52 in the erstwhile FDI Policy of India,[xvii] an SBRT entity is permitted to undertake retail trading of its brand through e-commerce prior to the opening of brick and mortar stores, subject to the condition that the entity opens brick and mortar stores within 2 years from the date of commencement of any online retail operations. Online sales will yield positive dividends through the creation of jobs in logistics, digital payments, customer care, training and product skilling.[xviii]
The above-mentioned liberalization and simplification of the FDI norms is truly forging ‘Ease of Doing Buisness’ in India. It can be evidenced through the rising investments and the recent surge in FOREX Reserve of India. As the FCAs rise through the higher inflow of USD, the value of Indian currency weakens, thus, facilitating higher and cheaper exports against the American goods, boosting sales and economic prosperity. Thus, the move seems to be a positive step towards reviving the economy and increasing customer confidence. However, its real impact could be analysed in due course of time.
DECLINE IN IMPORT BILL
India is the world’s third largest crude oil consumer.[xix] However, unfortunately, it is devoid of any large reserves of such natural resourse. As a result of which, it imports around 85% of the total oil that it consumes.[xx]
Amidst the pandemic, several countries have resorted to lockdowns to ‘flatten the curve’ of the infection.[xxi] These lockdowns meant confining millions of people to their homes, shutting down businesses, halt in the production lines and ceasing almost all economic activity. During such periods of economic slowdown characterized by a drastic fall in the sales and profits. During such period, the demand associated with crude oil also drastically plummeted. In light of the same, the price of the crude-oil has come to a historic 20 year-low,[xxii] be it the BRENT crude (Brent refers to oil that is produced in the Brent oil fields and other sites located in the North Sea)[xxiii] or WTI (West Texas Intermediate is the preferred pricing model in United States),[xxiv] the prices are at a staggering low.
Further, as nations are busy battling Covid-19, Saudi Arabia launched an all-out oil war, with the biggest cut in its prices in the last 20 years after a failure by OPEC+ to clinch a deal to cut production, owing to Russia’s opposition. As a result, the oil prices crashed in global markets. [xxv] However, the unprecedented phenomenon could, indeed, be a blessing in disguise for India.
During 2019-2020, India’s crude import bill amounted to USD 102 billion.[xxvi] Owing to the Covid-19 Pandemic and the falling oil prices, the Petroleum Planning and Analysis Cell (PPAC) under the Ministry of Petroleum and Natural Gas, Government of India has predicted that India’s crude import bill might fall by 60%, if the prices remain at USD 64 per barrel.[xxvii] However, in contrast, the prices have fallen far below the said amount. As a result, there is a probability that India could save its precious Forex Reserve. In light of the same, the analysts have recently released new predictions, concerning India’s import bill, which are as follows:
If the prices remain at USD 50 per barrel range for the rest of the year, India may save around USD 22 Billion in its import bill;
If the prices stay below USD 35 per barrel for the rest of the year, India’s savings could be a whooping USD 30 billion.[xxviii]
Thus, the widening Current Account Deficit of India could be restricted in the coming times, if the prices remain under the afore-said range. Efficient Forex Reserve can be achieved only when the balance of trade is optimized. India, in light of the same, has started filling up their Strategic Petroleum Reserve (SPR). SPR refers to the crude oil inventories (or stockpiles) held by the government of a particular country, as well as private industry, to safeguard the economy and help maintain national security during an energy crisis.[xxix] In India, the SPR is maintainted by the Indian Strategic Petroleum Reserves Limited (ISPRL), a wholly-owned subsidiary of the Oil Industry Development Board (OIDB), functioning under the administrative control of the Ministry of Petroleum and Natural Gas, Government of India.[xxx] However, its restricted capacity of 39 million barrels,[xxxi] is one amongst other such barriers.
The rising Forex Reserve of India owes its origin to the higher inflow of USD. The same is achieved through the liberalization and simplification in the FDI norms. Additionally, the falling oil prices have also brought considerable relief to the the import bill of the country. All such methods are not only bolstering the Forex Reserve of India but are also strengthening the value of the Rupee. Thus, India is in line to achieve its effective goal of having the value of its currency in competitive terms with USD but definitely not greater than it. This is because if the value of India’s currency would remain less but competitive with USD, the exports from India would become relatively cheaper against the American goods, hence, inducing sales and economic prosperity. The Manufacturing Sector of India particularly with respect to the Coal Mining Operations, Single Brand Retail and Contract Manufacturing also received its due share of Policy Framework, potentially generating formal and productive jobs, inducing exports and revenue growth in the long-run. Therefore, we can conclusively state herein, that the Policy is in conformity to achieve the long awaited goal of an ‘Atmanirbhar Bharat’[xxxii] characterising Import Substitution, Narrow Current Account Deficit and a favourable Balance of Payement Ratio concerning the Domestic Producers and Consumers.