Categories
Uncategorized

Inheritance taxes may not be the best way to address income inequality in India

ShreedharSasikumarConversations about income and wealth (often substantiated by links like this one) and how a disproportionate amount of the twenty-first century’s economic success stories seem to flow to the top of the pyramid (see Antilla and this) have proliferated on social media websites. Inheritance taxes (also known as estate taxes) are an increasingly discussed idea on how to prevent the perpetuation of these inequalities.

A simplistic example: Percy’s parents die and leave him USD 1 million, giving him lifetime financial security with very little effort. Beth, Sue, and Andy on the other hand, got no money from their parents and have little hope of catching up with Percy’s head start without extreme hard work and luck. With an inheritance tax of 50 per cent, Percy’s lead is cut to USD 0.5 million. A 100 per cent tax might mean a ‘level playing field’.

iLaw_InternationalCoursesThomas Piketty, one of 2014’s ‘it’ economists, suggests that the optimal inheritance tax for economies like the United States and France is 50-60 per cent. And President Obama seems to agree. Among the ‘egalitarian paradises’ of Scandinavia however, only Finland has an inheritance tax (8-20 per cent), with Sweden and Norway abolishing estate taxes in the past decade. India had it’s own estate tax (85 per cent for inheritances in excess of two million rupees), before abandoning it in 1985. At that time, VP Singh said that the tax brought in less than the cost of collecting it.

How much would inheritance taxes yield in India?

India’s total wealth stock is estimated to be in the region of USD 3.6 trillion (Credit Suisse), with a death rate of 0.74 per cent. So in an average year, about USD 27 billion of property is available to be inherited (and taxed). Limiting that to wealth greater than USD 10,000 (6 lakh rupees) reduces that to approximately USD 14 billion. An inheritance tax of 50 per cent on this portion of the wealth should yield approximately USD 7 billion.

Seven billion dollars would be a nice little windfall for the government. It is approximately 2.5 per cent of the 2014-15 Union Budget. A 50 per cent tax is also likely to be painful for the inheriting class, which is almost 5 per cent of the Indian population according to Credit Suisse. But USD 7 billion is just less than USD 10 per adult, less than 1 per cent of the per-capita income. This 1 per cent growth in income is unlikely to significantly improve life at the bottom of the economic pyramid (while causing significant pain at the top). India’s wealthy do not seem rich enough, numerous enough, (nor die fast enough) for inheritance taxes to make much of a difference in absolute terms.

The difficulty of collecting inheritance taxes on illiquid assets

Moreover, USD 7 billion might also be a gross over-estimation of the potential tax collection. Over 85 per cent of wealth in India is ‘non-financial’, that is, in non-liquid assets like land and family business and not liquid assets like cash or bank deposits. Suppose Percy from our earlier example received his inheritance in the form of an apartment, purchased at a cost of USD 100,000 10 years ago, but now worth USD 1 million according to the local realtor. Assuming a 50 per cent tax-rate, does Percy owe the government USD 50,000 (based on the original value) or USD 500000 (based on market value)? What if Percy’s inheritance was a bakery business instead of an apartment? Does the business need to be wound up so as to afford the tax bill? Perhaps the tax is charged only at the time of a sale but then who is going to be in charge of assessing the market value of illiquid assets and tracking the sales of inherited property against ‘earned’ property to charge differential tax-rates? V.P. Singh might have a point in that assessing inheritances taxes may be more trouble than they are worth.

Inheritance taxes seem an inefficient way to transfer economic resources from the top of the economic pyramid to the bottom, especially in poorer nations such as India. When a country’s absolute level of wealth is low (the average U.S. citizen is 75 times richer than the Indian) and has a low wealth to income ratio (U.S. wealth is 5 times the annual G.D.P. against 1.7 for India), the amount of money available to be inherited (and taxed) can be too little to make a significant impact. The difficulty and costs of administering such a tax are also higher when close to 90 per cent of the assets are illiquid unlike in developed nations like the U.S.A. where about half the wealth is considered ‘financial’. As a transfer payment, inheritance taxes seem (ironically) more appropriate for richer and already more egalitarian economies than for developing nations like India.

Incentives to sell ancestral property will reduce total wealth

Urban_PovertyThe social impact of inheritance taxes might have less to do with transfer payments and more to with ‘creative destruction’ due to the shifting of incentives. While actual behavioural changes are highly sensitive to the specific details of a policy, high inheritance taxes in general disincentivise savings and encourage consumption.

Imagine an economy that introduces a 50 per cent inheritance tax. Seniors in this economy are likely to start saving less and spending more on the principle that you might as well spend it while still alive, instead of having to give it to the government upon death. They might also start converting illiquid assets like land to cash to finance such consumption. Heirs who sell illiquid assets to raise tax funds is also likely to increase the supply of illiquid assets available for sale. Ancestral property that has been passed down for generations is therefore increasingly likely to hit the open market.

As the supply of asset classes like land or cash in the market increases, wealth becomes cheaper and more accessible to people at the bottom of the pyramid (but that could have the perverse consequence of making day-to-day consumption more expensive). The drop in the prices of ‘wealth assets’ will reduce the ‘head-start’ of heirs since inheritances will be worth less at the lower price levels. Large changes in the price of asset classes will lead (at least temporarily) to greater social and economic mobility. Those holding previously expensive ‘investment’ goods will become poorer while those holding previously cheap ‘consumption’ goods become richer. And the need to convert illiquid assets to liquid ones at death will lead to greater turnover of ancestral properties and reduce the probability of small groups dominating wealth ownership.

As the price of ‘wealth’ falls however, so does the value of an economy’s capital stock. Higher incentives for consumption mean lower incentives to invest in replenishing the capital stock. And conditions where assets sale are motivated by the death of the owner rather than maximized economic value are likely to lead to inefficient outcomes. Imagine again the company that has to liquidate each time the majority owner dies to provide cash for the heir’s tax bill. According to some conservative observers, the ‘death tax’ in the USA has resulted in USD 1 trillion of ‘capital destruction’ (since 1916), or approximately USD 10 billion a year.

Inheritance taxes are likely to reduce economic inequality, but have the potential to be disruptive and reduce the cumulative stock of wealth, giving us a choice between a large but steep (unequal) economic pyramid or a flatter (more equal) but smaller pyramid. Economic equality through taxation is no free lunch.

(Shree is a wandering economist who has changed his address fourteen times in the last fourteen years. He has few ideas except those opposite to who he is talking to.)

Categories
Uncategorized

Out of the courts and into the social process – the careers of Harish Narasappa and Amba Salelkar

AtreyeeMajumder_CraftingLawCareers

As a fresh law graduate, Harish Narassappa went to court to be handed a file numbered 1 of 1956. He thought to himself that it must have been a mistake – it must be 1 of 1996, but no, the number was right. Such was the extent of delays in the judicial process, he learnt. In this post, we meet two lawyers who picked up their first legal instincts inside courts – Harish Narasappa and Amba Salelkar – both having taken law degrees at NLSIU, the former in the mid-nineties, the latter in the mid-2000s. They remind us of Ramanathan’s sustained engagement with the question of law and poverty in diverse theatres, but these two lawyers built institutional edifices in furtherance of their queries about law’s role in the social process.

Having completed two stints of corporate practice, in London and in Mumbai, Narasappa returned to his hometown of Bangalore in 2005 and rented a space where he would begin an office. At this point, his vision was to do policy-related work. Two of his friends, Siddharth Raja and Roopa Doraswamy, also alumni of the National Law School of India University, had also quit their jobs, and asked if they could use the space. Over time, this space emerged as a corporate law firm. Their emphasis was on cultivating a space where young lawyers would be recruited and nurtured, where there was gender equity, humane working hours, and so on. The firm, eventually named Samvad Partners, grew over time to have a presence in four Indian cities, but Narasappa’s earlier desire to engage in policy matters had remained unfulfilled.

He started Daksh India in 2006. An idea initially, it took a couple of years to be registered. As a defining question of Daksh, Narasappa and his colleagues were interested in testing the efficacy of ‘democratic institutions’.

“…lot of people do things which makes change visible – volunteer time for a school, give some computers. I wanted to intervene at an institutional level…”

In sheer numbers, India carries an arrogant epithet of the largest democracy, but it is a democracy where the citizen’s capacity is numbed in the five-year period between elections. Further, he may have some form of accountability from elected representatives, but he doesn’t have the same from bureaucrats or other government agencies who may affect his well-being. Often, there is no recourse or clarificatory procedure available unless there has been a violation of a legal right, for which he can go to the courts. He does not know what the stance of his MP or MLA is on important issues like the Lokpal Bill, how he is going to argue in the house, and what his representative’s performance in the house has been like.

Harish Narasappa

Daksh and Narassapa designed a survey, which initially ran in Karnataka, but in the past two years, in other states such as Rajasthan and Bihar as well. The survey results were reflected in ‘scorecards’ for MLAs. Before the 2013 Karnataka assembly elections, leading Kannada newspapers carried their surveys. The representatives who had performed well on the scorecards were happy, those who hadn’t, claimed that the right criteria had not been taken into account. There was great support from people who said that they appreciated knowing these things as they went in to vote. Daksh’s intervention was to make the electoral process more effective by making crucial information available in the public domain, in local languages, for citizens to be able to exercise the franchise effectively. Daksh’s new intervention – the Rule of Law project – addresses the issue of judicial delay. With it, Narasappa attempts to strengthen the bridge between the two legs of his practice – in law and in public policy.

Amba Salelkar moved from a litigating career in a Mumbai criminal law firm to working in disability law and policy, when she quit her Mumbai criminal law career and moved to Chennai to join the Inclusive Planet Centre for Disability Law and Policy. Her work in this realm concerned large sections of the public who suffered physical disability themselves or were caregivers or associates of others who suffered disability, legislators, law implementers, non-legal NGOs, and disability professionals.

After the switch, she could no longer take for granted the literacy in legalese on the part of the large and diverse constituency who were now her colleagues and associates. The other thing she began to get used to was the slow and seemingly non-eventful nature of policy work, involving long hours of deskwork and academic research. Initially, Salelkar wasn’t particularly interested in disability issues. It was the conviction and energies of Rahul Cherian, another older alumnus of the National Law School of India University that drew her in. She started working with Cherian on a shadow report on mental health law in India, something that interested her as she had received treatment for mental health concerns in her own life.

Amba Salelkar

Amba Salelkar

Rahul Cherian envisaged the Inclusive Planet Centre for Disability Law and Policy as an offshoot of sorts from discussions which were taking place on inclusiveplanet.com. The latter was a social networking website which was accessible for persons with disabilities, and it was through this that Rahul was exposed to the gap in policy and legislative interventions on behalf of persons with disabilities. Rahul was heavily involved in the “right to read” movement, which was seeking an exception to copyright law to allow for published material to be converted into accessible formats, and found that there was a lot more to be achieved when it came to advocacy under the United Nations Convention on the Rights of Persons with Disabilities….”

After Cherian’s death in February 2013, she came to lead the organisation. Apart from work in the legislative domain, trying to influence bureaucrats and legislators, Salelkar’s advocacy operations take her to teaching disability law to a series of concerned groups. Her objective is to breathe life into a legal imagination of a person with disability as a citizen, a professional, a worker, a consumer, and a service-receiver. She attempts to equip people like caregivers with tools from the Constitution (like fundamental rights) that can be used to their benefit. For instance, understanding the right to equality and the vast jurisprudence under Article 21 (right to life) and other constitutional law principles including the tradition of courts having used international conventions as the Supreme Court did in the Vishaka judgment, can be used for strategic litigation.

“Some people are fascinated by the law….Some people are jaded. They say the law promised us so much, especially with the 1995 Act, and it never delivered… My job is give them a realistic perspectives on the things that a legal avenue can offer. I don’t want to give people too much hope….My job is to tell them you may be right, but it doesn’t mean you will get a judgment in your favour….”

Salelkar sees her role as having live intersections with other rights-based movements – especially, queer and feminist movements, recognising the absence of support within the legal and judicial system for a category of person that does not match the standardised legal imagination of the ‘normal’ person. Disturbing the ‘normal’ is at the core of her long journey within and without the law.

We will continue talking about Narasappa and Salelkar as we look at their institutional energies in a larger ecosystem of policy reform.

(Atreyee Majumder is an anthropologist. She teaches at the School of Development, Azim Premji University.)

Categories
History Uncategorized

Ringing out the old – identifying and removing deadwood from India’s statute books

SmritiParsheera_SumathiChandrashekaran_JusticeReform

India has many laws that are over a hundred years old. Several of them have lost their relevance over time for various reasons, either due to a change in circumstances, or because the original objectives that these laws served have been achieved, or because they have been subsumed under more recent legislation. The old laws however, continue to remain in the statute book, causing confusion by adding to the ever-expanding maze of statutes that govern us, and creating scope for abuse.

Weeding out obsolete laws has become a priority for the present government. In August 2014, it set up a committee to identify obsolete laws and make recommendations for their repeal. How have we fared till now and what else needs to be done to put a streamlined process in place for spring-cleaning these laws?

The age of laws in India

The list of central laws maintained by the Union Law Ministry features 1,138 current statutes without taking into account the large number of Appropriation Acts and Amendment Acts that are also part of the statute book. As estimated by the P.C. Jain Commission in 1998, there are also about 25,000 to 30,000 state laws.

An examination of the ages of the existing central laws brings out some interesting facts. Of the 1,138 listed laws, 298 date back to the pre-Independence era. 140 of them are from the 1800s. While vintage by itself does not signify redundancy – the Indian Contract Act, 1872 and the Indian Penal Code, 1860 are clear examples – it does signal a need to rethink the relevance of these laws in light of changing social and economic contexts. In the case of state laws, the absence of a comprehensive database makes it difficult to conduct a similar assessment of their number and antiquity.

Since many of the pre-Independence laws also fall under subjects that are now within the exclusive legislative competence of the states, state legislatures are responsible for their repeal. Better co-ordination is therefore required between the Union and the states on this issue.

Identifying dead wood

Of the types of laws that are in need for immediate repeal, the most obvious are the Amendment Acts, (that is, laws that were originally intended to amend or change the text of a parent statute, and which changes have already been incorporated) and Appropriation Acts (that is, laws that were meant to operate for a fixed period that has since expired).

LawsRecommendedforRepeal_LawCommissionofIndia_v3

The Law Commission has undertaken a number of exercises to help identify the ‘dead wood’ that needs to be removed from the statute book. The 1998 PC Jain Commission also made recommendations on this subject (See table below). While many of the identified laws have already been repealed, 253 statutes remain, which have been identified for repeal, but on which action is still awaited from the government (Appendix II, Law Commission of India, 248th Report).

Reports-prior-to-2014-on-the-repeal-of-obsolete-laws

In 2014, the Law Commission undertook the detailed exercise of classifying all laws into 49 subject-categories and then identifying those laws that were in need of repeal. The four-part series of interim reports released by the Commission identifies a total of 265 laws that need to be repealed. The image below represents for each decade, the number of existing laws and the number of laws that have been recommended for repeal by the Law Commission.

Following these reports, the Legislative Department at the Ministry of Law and Justice sought the views of various departments regarding the proposed repeals. Two Repealing and Amending Bills have already been placed before the Parliament to give effect to the repeal of 126 laws that have “either ceased to be in force, have become obsolete or their retention as separate Acts is unnecessary”. Almost all of these are Amendment Acts.

Spring-cleaning the statute book

How do we ensure that the statute book keeps pace with changing times? One option followed by countries like United States and Canada is to have a “sunset clause” which sets out upfront, an expiry date for a law. In practice however, sunset clauses are often treated as a “snooze button” with the laws being extended as a matter of course. The more immediate solution may be to mandate the Law Commission or another body to undertake a statutory review exercise on a regular basis. This is crucial for both central as well as state laws. However, our experience from the past has been that such reviews do not always lead to their logical end, mainly because of legislative inaction. While introducing any system of regular review therefore, it is necessary to ensure that central and state legislative departments are made responsible for formulating draft bills based on these suggestions. Finally, of course, it is up to the Parliament and the State Legislatures to recognise their responsibility to clear the statute book of redundant and conflicting laws.

(Sumathi Chandrashekaran and Smriti Parsheera are lawyers working in the area of public policy.)

Categories
Uncategorized

In-laws of Hindu woman should pay maintenance if husband cannot maintain her due to disability, recommends Law Commission

PraptiPatel

A seven-member committee of the Law Commission of India led by its Chairman (retired) Justice A.P. Shah, has recommended an amendment to the Hindu Adoption and Maintenance Act, 1956 (“Act”). This amendment would direct the family of a man to protect and maintain his Hindu wife if he cannot do so himself due to physical, mental, or any other kind of disability.

The matter was referred to the Law Commission by the Punjab and Haryana High Court after the case of Avtar Singh v. Jasbir Singh, RSA No. 29/1988. In that case, the wife of a man of unsound mind had sought, as maintenance, a one-fourth share in the land belonging to the family. Initially she was given the share through a settlement effected by the village Panchayat but was later driven out of the land by her father-in-law.

In passing his judgment, Justice Paramjeet Singh noted “In such a situation, the wife should be deemed to be dependent upon the father-in-law and entitled to maintenance as provided under Section 19 of the Hindu Adoptions and Maintenance Act.”

The panel has recommended the following insertion in Sub-section 4 of Section 18 of the Act, as: “Where the husband is unable to provide for his wife, on account of physical disability, mental disorder, disappearance, renunciation of the world by entering any religious order or other similar reasons, the Hindu wife is entitled to claim maintenance during her lifetime, from members of the joint Hindu family of the husband, except where the husband has received his share in the joint family property.”

Even before Avtar Singh, the issue had been in focus before the Bombay High Court in Ramabai v. Trimbak Ganesh Desai in which it held, “No doubt, the authorities do not show that the relations of a deserted wife are under a personal liability to maintain her; but they do show that she is entitled to be maintained out of her husband’s property to the extent of one -third of the proceeds of that property.”

In Gopala Pattar v. Parvathi Ammal (1929), the Madras High Court declared, “It is difficult to see any distinction between the position of a widow who has been obliged to enforce her charge for maintenance and that of an abandoned wife who is obliged to do the same If she has this right against her husband personally it can be enforced by the attachment and sale of his property and that property consists of an undivided share in the joint family property.

The proposed amendment will apply not only to wives whose husbands have a mental or physical disability, but also those who have disappeared or renounced the world by entering a religious order. The singular exception is when the husband has already received his share in the family property by way of partition.

The Committee handed over its report to Law Minister D.V. Sadananda Gowda on January 6, 2015.

(Prapti Patel is a student of the Indian Law Society’s Law College in Pune.)

Categories
Uncategorized

Other jurisdictions accommodate Uber-style aggregators better than Delhi’s new radio taxi regulations

Tenzin Namdol is part of the faculty on myLaw.net.

Uber is an American company that sees itself “seamlessly connecting riders to drivers through (their) apps”. Users of its mobile phone application can avail of rides on cars owned by independent taxi operators. By claiming that it is a technology company, and not a taxi service, Uber slips between (often outdated) regulations applicable to traditional taxi services, and yet manages to noticeably compete and capture their share of the market. A recent allegation of rape against an Uber taxi driver by a customer in Delhi fits into a pattern that has been observed in nearly every jurisdiction that Uber operates in – an absence of accountability for the actions of their drivers. In fact, just days after the Delhi incident, an Uber driver in Boston was accused of raping a customer.

Some jurisdictions like Canada and England have debated whether regulations applicable to traditional taxi services should apply to services like Uber. Delhi, according to Satish Mathur, Special Commissioner of the Delhi Transport Department (in discussion with the Economic Times), has taken that route. Cabs taking customers from one point to another in the national capital are bound by the Radio Taxi Scheme, 2006 (“Radio Taxi Scheme”).

After the recent rape allegation, the Delhi Transport Department also modified the Radio Taxi Scheme to allow aggregators such as Uber to be eligible for a radio taxi license. The new rules require aggregators to follow the Motor Vehicles Act1988 and the Information Technology Act2000. Applications for the license need to be registered under the Companies Act, 2013. Previously, companies such as Uber used cabs which ran plainly on permits and license issued to the owners of the cabs. Satish Mathur had explained that the licenses, for which Uber had never applied, require radio taxi licensees to be responsible for the quality of drivers, their police verification, and the supervision of the behaviour of drivers. Now, the procedure of applying for licenses will change the fundamental nature of the operation of such companies, if they will be able to function at all.

Delhi’s new Radio Taxi Scheme

The Radio Taxi Scheme, which is effective immediately, covers application-based services like Uber. The licensees have to have a registered office in Delhi and the details of the headquarters including a telephone number and an email ID need to be submitted to the transport department. The scheme also requires a panic button that will immediately and directly connect to the nearest police station or police control room and a GPS or GPRS which must maintain constant communication with the central control unit of the radio taxi service during the entire time it is on hire. It is unclear how applications such as Uber will adapt to meet these requirements.

The pending road safety law

Similarly, the pending Road Transport and Safety Bill, 2014 (“Bill”) attempts to bring “aggregators”, such as Uber, within its ambit. The Bill proposes to introduce new statutory bodies to regulate motor vehicles and the introduction of a ‘unified vehicle registration system’ and a ‘unified driver licensing system’ to ensure that each vehicle qualifies safety tests and follows the regulations such as using a biometric system to strengthen accountability. There is also a ‘graded point system’ to grade the conduct of each driver and each time a driver commits an offense such as not using the seat belt or driving under the influence of alcohol, the driver’s license would be suspended after certain points.

Regulation specifically for Uber-style companies

Uber

While some jurisdictions are extending the regulations applicable to traditional taxi services to cover aggregator services also, other jurisdictions (like Germany) have opted for an outright ban. Some jurisdictions on the other hand, have reacted with regulations that apply specifically to companies like Uber.

Singapore has set up specific regulations governing ride-sharing companies like Uber. Uber needs to register with Singapore’s Land Transport Authority. Only licensed vehicles and drivers may be used and the fees are regulated too. In Uber’s home state of California, the Public Utilities Commission created a new category, that of “Transportation Network Companies”, in September 2013. Companies under this category, must obtain a license to operate, and all the drivers must have criminal background checks, vehicle inspections, install driver training programs, and hold a commercial liability insurance policy that is in force while the driver is on the way to pick up a customer or is giving a ride to a commuter. In Illinois, the Ridesharing Arrangements and Consumer Protection Act and subsequent amendment require commercial liability insurance, criminal background checks for drivers, and vehicle safety inspections. Drivers working over eighteen hours a week also need to hold a chauffeur’s license. In this way, any drivers who operate through services such as Uber, and drive for over a certain number of hours, are automatically subject to the same criminal background checks and drug testing as regular taxi drivers. Many jurisdictions therefore, have begun legislating, learning to accommodate and yet regulate non-traditional companies like Uber.

While the recent changes in the Radio Taxi Scheme and the pending Bill include “aggregators” like Uber, it remains doubtful whether such technology-based companies will actually be able to function in their current avatar. Therefore, as we await the pending legislation on motor vehicles, India could also mould regulatory models that apply specifically to “transportation network companies” or “aggregators”.

(Tenzin Namdol is part of the faculty on myLaw.net.)