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Published: June 26, 2022, 8:15 a.m.

Global Policy Watch: Woe Vs Raid

Insights on policy issues making news around the World

- RSJ

On Friday, Justice Samuel Alito along with the conservative bloc of the US Supreme Court (SCOTUS) overturned the landmark Roe v Wade judgment that had granted women a federal right to terminate a pregnancy about half a century ago. The conservative raid into the SCOTUS that started with the efforts of Bush Jr and concluded with Trump appointing three judges during his term has delivered to the great woe of the progressives. The learned judges searched for the word abortion in the Constitution. And to their surprise, they figured it just wasn't there.

To quote:

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely\u2014the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be \u201cdeeply rooted in this Nation\u2019s history and tradition\u201d and \u201cimplicit in the concept of ordered liberty.\u201d\xa0\xa0

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment\u2019s protection of \u201cliberty.\u201d Roe\u2019s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called \u201cfetal life\u201d and what the law now before us describes as an \u201cunborn human being.\u201d

Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

Strong stuff. But with a minor problem. I\u2019m not sure SCOTUS has always stayed away from subjects that don\u2019t have a reference to them in the Constitution like the learned judges have claimed. I mean I have gone through the US Constitution and the Declaration of Independence document a few times. I could have also told them they won\u2019t find a reference to abortion there. But I didn\u2019t find the word woman in them either. No idea how that section of the human species got all sorts of rights in the US then.

Also, missing from the Constitution are references to wild house parties involving strippers, or to tomatoes, home video recording, or swats to your bottom with a paddle to name just a few of my favourite things. But these are all things on whom the Court has delivered verdicts. Read them if your life is as boring as mine: Wild house parties involving strippers. Is the tomato a fruit or vegetable? The Betamax case of using a home recording device. And the case of the Principal who delivered 20 swats with a paddle to his pupil James.\xa0The SCOTUS has opined on them all.

So, you see the judges aren\u2019t exactly being consistent with precedence here. And they are setting new dubious benchmarks. There have been numerous instances of the Court striking down past judgments to grant more rights. Not to take them away. This is a repudiation of a lot of truths that progressives take for granted. That the arc of history in the long term bends towards moral justice. Or, that gains on individual liberty that survive more than a generation become irreversible.\xa0

Apparently not.\xa0

So, we have the US now joining El Salvador, Poland and Nicaragua in the list of countries that have rolled back abortion rights in the last three decades. About 26 states will make abortion illegal or restrict it on the back of this judgment with immediate effect. It is all quite remarkable.

Some days you try and make sense of the pitched battles on the US cultural landscape: on how to use pronouns - he, she, they, it, them, their; or the definition of woman; or cancelling J.K. Rowling because she is a TERF. The terms of such debates are so rarefied that you need a primer first to understand the language being used before you can come to the substantive issues. And while they busy themselves in an ever-splintering contest of being \u2018purer\u2019 than the other, the rug gets pulled from under their feet with a judgment that rolls back years of hard-fought wins on women\u2019s autonomy on their bodies, individual liberty and female reproductive health and safety. Now more than half the states are readying themselves to implement it tomorrow. It reinforces my view that any ideology or \u201c-ism\u201d isn\u2019t threatened by its rival but by the absolute section of its own adherents. The desire to finish off the \u2018near enemy\u201d is stronger than fighting the real one. Some day the \u2018trads\u2019 and \u2018raitas\u2019 of Indian wrong wing will also get there. It is a point I have made a few times in explaining Schmitt\u2019s notion of an enemy being essential for a political ideology to flourish.

It is not that progressive are alone in this kind of hypocrisy. The same conservatives who value the life of a foetus or of those who are \u2018unborn\u2019 don\u2019t see any problem in defending the \u2018gun culture\u2019 that takes away more than fifty thousand lives every year. For some convoluted reasons, those lives are an acceptable cost to pay for the right to possess firearms. It is sad yet funny to an outsider looking in. \xa0

This won\u2019t stop here. The conservative majority in the SCOTUS took decades, and a lot of good fortune, to come to fruition. They will make the most of it.

Justice Clarence Thomas gave a sense of what is to come in his concurring note to this ruling:

\u201cIn future cases, we should reconsider all of this court\u2019s substantive due process precedents, including Griswold, Lawrence, and Obergefell.\u201d

Quick reminder. Griswold v Connecticut is about a married couple\u2019s right to use contraception without state interference. Lawrence v Texas restricts the states from criminalising sodomy, and Obergefell v Hodges established the right for same-sex couples to marry in 2015. Justice Thomas might be alone now in raking these up. But something tells me that the genie is out now.

For all its pretensions, ideology reduces itself to three functional truths. Find something to hate viscerally, over-extend the shadow of your ideology to all realms of a citizen\u2019s life and protect yourself by sanctifying a core principle within the ideology that cannot be made profane. You will enjoy the fruits of power while future generations will foot the bill.\xa0We are now on an overdrive of ideology on both sides of the partisan divide. \xa0

Stepping back there are three points I want to make here about what this reversal could mean from the seemingly ineluctable path the American society was marching on since the civil rights movement of the 60s.\xa0

First, the tyranny of the well-organised minority in a democracy is real. American society isn\u2019t as divided on the issue of abortion as it was decades back. Roe v Wade didn\u2019t \u2018deepen division and enflamed debate\u2019 as Justice Alito puts it. I went through Pew and Gallup surveys over the years on people\u2019s attitudes towards abortion. It is safe to say anywhere between 60 - 80 per cent of Americans are against the idea of making abortion illegal. Most of the remaining too don\u2019t hold extreme positions on this topic. Maybe there\u2019s a 15 per cent minority of evangelicals and Catholics concentrated in certain states that hold views that have been upheld by the SC. Yet they have prevailed because single-issue voters like them matter in the Republican primaries and in winning the swing states. This is what explains Trump\u2019s base among these groups despite his standing for everything they abhor on moral grounds. And once you establish this \u2018tyranny of minority\u2019, you can override the silent majority. Because the benefits are concentrated with them while the costs are diffused among the majority. It is not as if the founding framers of the US Constitution were unaware of this risk. Alexander Hamilton in Federalist Papers #22 (1788) had cautioned:

\u201cTo give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.

If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.\u201d\xa0

This is the reality. The only way to deal with this is for the opponents to mobilise themselves into a single issue minority that counters this or to wait for this to splinter on its own. Neither seems possible at this time in the US. But the broader message on how a minority cause can overturn a majority consensus will not be lost on many who champion fringe causes. And this is also the reason one shouldn\u2019t casually dismiss any voice even in India as fringe as we tend to do. Fringe swings votes and influences the social and cultural agenda of political parties. It is wise to remember that when considering the statements of Yati Narsinghanand or Nupur Sharma.\xa0

Second, the concurrence note by Justice Thomas that refers to other hot-button conservative cultural causes will play out in a certain way. It is important to understand this. As he wrote:

\u201cwe have a duty to \u201ccorrect the error\u201d established in those precedents \u2026. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.\u201d

What Justice Thomas has done is in public policy called \u2018shifting the Overton window\u2019. What was earlier not in the realm of discussion or consideration now comes into play. The terms of reference for the cultural debate to be played out in courts have been widened with those lines. This will have an impact on the decisions made in numerous lower courts. Lives will be affected.\xa0

Lastly, I come back to a point I have made before about the sanctity of Courts directing social norms in a top-down fashion as it was first done in Roe v Wade and the manner of overturning it on Friday. A bit of context will help here.

The conservative preference is for any social change to be gradual. Societal change is shaped through the many eddies of debates and protests that resist the flow of the mainstream. As they gain wider acceptance, they begin changing the course of flow of social norms. This could be painstakingly slow, but it makes change acceptable and sustainable. For the conservatives, the role of the judges is to apply laws, not to create them. Going beyond this brief becomes judicial activism. So, the original conservative view was that all issues of public or social policy should be discussed and debated by the legislative and executive branches of the state that represents the society. Courts resolve disputes following the written-down law while sending back any ambiguities to the legislative arm for approval.

The liberal position, as it has evolved over time, is marked with suspicion of the society reforming itself. The classical liberal approach to this problem was to accelerate the process of change in society. This was to be achieved through a combined political, social and cultural assault on the bastions of conservatism in the society. This led to the portrait of a liberal as a perpetual activist in a constant state of mobilisation to upend existing norms. The liberal belief that society must change from within was no different from the conservative stance. The difference was between the need to induce change through proactive measures and the speed of change. This need for speed eventually led the liberals to the courts.

Based on the evidence it can be argued the conservatives have lost the argument. The courts are at the front and centre of social policy-making today. The many historic judgments that cleave the US society are evidence of it. The legislative arms of the state representing the society aren\u2019t drafting these laws.

But here\u2019s the irony. The conservatives have co-opted the liberal model. With a few strokes of good fortune, the single-minded agenda of turning the US SC bench into a conservative majority has been fruitful. The peril of pushing social change into the cabins of a powerful, centralised and autonomous institution is clear to the liberals now when the shoe is on the other foot. A blunt instrument doesn\u2019t look blunt till it is in the hands of your adversary. The path of wresting back control to society will be long and arduous.

Roe v Wade verdict in 1973 was ahead of its time. It was imposed on a society where the majority weren\u2019t onboard. It bred resentment and a counter-movement. Justice Alito\u2019s verdict on Friday takes us back in time. It too is imposed on a society where the majority isn\u2019t with it. The Court is either ahead or behind the times in which they live.

And it is on this subject, I come to the only line that I agreed with in Justice Alito\u2019s 213-paged judgment:

It is time to heed the Constitution and return the issue of abortion to the people\u2019s elected representatives. \u201cThe permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.\u201d

That\u2019s the way it should always be. Back in 1973. In 2022. And in future.

Addendum

\u2014 Pranay Kotasthane

I don\u2019t follow American politics. I\u2019m also cognizant of my ignorance of the context of the abortion debate. And so I\u2019ll stick to three broader points of comparison between the Indian and American political systems.

First, this case brings the Constitutional Immutability Dilemma into focus. The underlying reasoning of the judgment is that the American constitution makes no specific reference to a right to obtain an abortion. The cases Roe and Casey tried to link it with other rights, which the current Court did not find acceptable. As an Indian observer, one would think that the constitution should\u2019ve been amended to insert this right expressly, but that\u2019s where the Constitutional Immutability Dilemma kicks in \u2014 how amendable should a constitution be after all?

To resolve this dilemma, India and the US pick opposite ends. Amending the American constitution requires fulfilling extraordinary conditions, and hence just 27 amendments have been made in its nearly 250-year-old history. On the other hand, amending the Indian constitution is far easier. The latter\u2019s mutability often attracts criticism on these lines\u2014\u201ca document that flexible is a periodical, not a constitution\u201d. However, I\u2019ve always been sceptical of that view. Constitutions are neither sacred books nor indisputable words of a supernatural force. Allowing subsequent generations to alter the constitution through their elected representatives is perhaps a better equilibrium than relying on future judges\u2019 interpretations of an inflexible constitution. Ambedkar, in fact, cited Jefferson in defence of this choice:

\u201cWe may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.\u201d

As this case illustrates, having rigid conditions for amendments open the door for partisan court benches to interpret the constitution as per their ideological worldviews. At the very least, I submit that a periodical is not worse than an immutable book. The working of a constitution is dependent on many factors outside the nature of the constitution itself. These lines from Ambedkar\u2019s Constituent Assembly speech reverberate today:

\u201c..however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the working of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics. Who can say how the people of India and their purposes or will they prefer revolutionary methods of achieving them?\u2026 It is, therefore, futile to pass any judgment upon the Constitution without reference to the part which the people and their parties are likely to pay.

Second, every polity has its unique set of \u2018sacred cows\u2019\u2014issues involving such deference and passion that logical arguments stand no chance. For reasons of historical path dependence, these issues over time become wicked, insurmountable problems. Guns and pro-life are two such sacred cow issues of the American polity. To an external observer, the solutions might seem absurdly simple. But to someone in the midst of it all, the issue seems intractable. India too has many such sacred cow issues, one of which is the sacred cow itself.

Third, the judiciary often ends up confusing itself for the politician. These lines from the judgment are instructive: \u201cAnd far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.\u201d Why should it be a court\u2019s problem if its judgment has led to more division? Is it a Panchayat that needs to come to a mandavali (negotiated settlement) or should it only be concerned with the Constitutional provisions? These questions keep making a frequent appearance in India. Looks like they aren\u2019t settled yet in the US as well.

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India Policy Watch: Pension Tension

Insights on burning policy issues in India

\u2014 Pranay Kotasthane

The protests against the Agnipath scheme seem to have peaked. This gives us an opportunity to step back and look at the issue dispassionately. We have already looked at the Agnipath scheme in some detail last week. This time around, I\u2019ll focus on the underlying motivation behind this scheme: India\u2019s defence pension bill.

In the Hindustan Times, I present a short history of India\u2019s pension bill.

"Before 1965, soldiers below officer ranks were recruited through a mechanism resembling Agnipath in the sense that they served seven years of compulsory service and didn\u2019t receive a pension on retirement. This service period was first raised in 1965 to 10 years for bulking the armed forces after the 1962 defeat. Since a pension required a minimum service of 15 years, most soldiers still didn\u2019t qualify.

In 1976, this ten-year service term increased to 17 years, meaning every soldier in normal circumstances qualified for a pension on retirement. With the welcome development of a rising life expectancy, there was also a steady increase in the number of pensioners. The combined effect of these factors was a rapid rise in the pension bill. From Rs 228 crores in FY81, the pension expenditure galloped to Rs 5923 crores by FY99.

The Kargil Review Committee (1999) set off the alarm bells over the pension issue, mooting the idea of reducing the service term to 7-10 years. As an alternative, the committee also proposed an inverse lateral induction mechanism, whereby a paramilitary force recruit would be deputed to the armed forces for seven years and repatriated back to the parent organisation after that. Through this mechanism, the experienced soldiers could be retained in the national security system longer while reducing the pension bill. None of these alternatives received the political nod.\xa0

Meanwhile, in 2004, the union government was able to find a long-term solution for pensioners from the civil services cadre. While continuing to pay pensions of all current employees, the government moved its incoming employees recruited after 1 Jan 2004 to the National Pension System (NPS). NPS is a \u201cdefined contribution\u201d scheme, where the pension is paid out of a corpus the employee and the government co-create over the employment period. Over time, this move will likely make the pension bill sustainable, as the liability is not being passed on exclusively to future taxpayers. However, armed forces personnel were kept out of this reform, mainly because non-officer rank soldiers retiring after a short 15-year service would not be able to build a robust corpus, unlike their civilian counterparts who were in service for twice that period.\xa0

The lost opportunity in 2004 proved to be costly. By 2014, the public discourse had shifted in the opposite direction. Rather than customise the NPS to soldiers\u2019 requirements\u2014which would have been an ideal long-term solution\u2014the NDA government implemented the One Rank One Pension (OROP) scheme. By agreeing to a \u201cdefined benefit\u201d scheme that resets periodically based on current employee compensation, the union government unthinkingly committed itself to a perpetually fast-growing liability.\xa0

While the government was happy to kick the can down the road, the COVID-19 pandemic was a wake-up call. On the one hand, government finances were thrown off balance. On the other, the border stand-off with China drove home the point that defence reforms are not just essential but also urgent. The creation of the Chief of Defence Staff (CDS) position was the first step. General Bipin Rawat repeatedly drew attention to the unsustainable defence pensions. During his tenure, a few alternatives were discussed. Each available option came with its own set of implementation challenges. Out of this imperfect set, the government chose to reduce the default service term to four years, labelling it as the Agnipath scheme.

In the Times of India, I try to estimate the defence pension savings arising from Agnipath:

Over the long term, it has the potential to reduce the pension burden substantially. At the same time, the scheme will not directly impact the allocations for modernisation in the short term. Here\u2019s why.

Agniveers recruited today are replacing soldiers who would have retired approximately 15 years from now. The purported pension savings would start accruing only after a decade-and-half.\xa0

As for the size of savings, we created a basic model from publicly available data. Our thumb rule suggests that the net present value of all future pension outflows per soldier is Rs 1 crore. The actual savings might be higher. Reports on the initial proposal by the Indian Army for a three-year Tour of Duty put the prospective lifetime savings per soldier at nearly ten times our estimate.

Arriving at an accurate figure is difficult as the government does not release the split-up of total pension expenditures between officers, soldiers, and defence civilians. To get around this data hole, we assumed that the average pension of a retiring officer is 3.5 times the average pension of a retiring soldier. To calculate the total pension outflow per soldier, we assumed that a soldier receives a pension for 29 years on average, i.e. the difference between average life expectancy (69) and the retiring age of a soldier (40). Further, since pension outflows happen over several years in the future, we use the Net Present Value (NPV) method to determine the current value of all future payments. For simplicity, we assume that the pension is indexed to the discount rate. Using even this extremely conservative model suggests significant long-term gains. Allowing 75% of the Agniveers recruited this year to let go after four years alone has a net present value of approximately Rs 34500 crores.

As highlighted earlier, these savings will accrue only after 15 years. But just as today\u2019s deficits are tomorrow\u2019s taxes, today\u2019s reforms become tomorrow\u2019s savings. Through Agnipath, the government can manage pension expenditures over the long term.

Finally, this entire defence pension debate has three important lessons in public policy.

First, secrecy is the enemy of public policy. Kelkar & Shah, in their book\xa0In Service of the Republic, identify secrecy levels as one of the barriers to building state capacity. They write that it is harder to achieve state capacity in areas closed to open feedback and criticism. The defence pension debate is a good illustration of their assessment.

As a policy analyst, the sad feature of this entire debate over defence pension is the complete absence of good data. Believe it or not, the government does not release defence pension data beyond the aggregate numbers listed in the budget documents. For example, we still don\u2019t know how this Rs 1 Trillion amount is split up between officers, non-officers, and defence civilians.

In the absence of this foundational information, myths abound (We tried to tackle five common myths in ThePrint). Moreover, without good data, the policy pipeline is clean-bowled at the very first step. There are no good models or projections to inform a cost-benefit analysis.

Second, is the absolute need for ex-ante fiscal projections of government plans. Seemingly innocuous changes in pension policies can have hard-to-reverse adverse effects. An institution such as an Independent Fiscal Council can help the people and politicians understand the financial consequences of such plans even before they are implemented.

Finally, I liken pension reforms to six-day test matches. Reducing employees' pensions while they are in service would be an immoral breach of trust. And hence, all pension reform options can only tackle future employees. Reforms done today can at best contain the rise in spending a couple of decades later when these yet-to-be-hired employees retire. Hence, it is imperative to exercise caution on pension policies at the inception stage.\xa0

HomeWork

Reading and listening recommendations on public policy matters

* [Articles] In #171, we discussed two missing meta-institutions in India. This week, a couple of excellent articles throw light on two other missing mechanisms. KP Krishnan in Business Standard writes about the need for an independent evaluation mechanism for statutory regulatory authorities. Rajya Sabha MP Sujeet Kumar, Vedant Monger, and Vikram Vennelakanti propose a method for formalised impact assessments before and after any law/scheme get a go-ahead.

* [Audiobook] The late Richard Baum\u2019s The Fall and Rise of China lectures are terrific.

* [Podcast] Over at Puliyabaazi, we discuss Agnipath and related issues.

* Edmund Burke, Reflections on the Revolution in France, 1790

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