Tuesday, December 18, 2012

Random Thoughts

by D. Dhanuraj

Three incidents in the last week shocked/encouraged me to write this edition of Random Thoughts.

Incident 1: I was walking to South Block to find the status update of  the application that I had submitted with MEA(Ministry of External Affairs). I was issued Gate pass and went for security check. The officer on duty told me that I could not enter the premises with the laptop that was kept in my shoulder bag. I readily agreed. Then I told them that I did not want to carry my shoulder bag also but they should allow me to keep it somewhere.

"It is none of our business"; she told me. I asked her what to do then. She asked me to keep the bag in the vehicle that I came by or keep it in the hotel  where I stayed. I did not have both the options as I was travelling from Cochin in the morning flight. Then I approached the reception. They had also the same reply but tone was different; that's all. I asked the security officer whether it meant I should go back to Cochin to keep the bag and return.In between other officers intervened. They told me that almost every day they encounter with visitors like me who did not know these formalities. Then I asked them why cant they keep a safe room for keeping these bags. They dont have the answer though they claimed that they had reported the matter to their superiors many times.

Learning: When you go a Government office, you may be lucky if you a find someone to help you if you land up in such a bizarre situation.

Incident 2:  Next day, I had been to MEA again. When I approached the reception, they told me that Intercom is not working in the entire premise. To issue gate pass, they need the instruction from the officer whom I supposed to meet. Since Intercom is not working, they told me that they could not let me in. I told them that I had to return to Cochin by evening flight so I could not postpone the meeting. Finally I have to give a list of officers in MEA whom I know there. After waiting there for 15-20 minutes, I was issued gate pass.

Learning: Intercom failure is costlier than your flight tickets.

Incident 3: Coming back from Delhi, I landed in Cochin airport. Emerging from the airport, I had the plan to pick Airport bus. But none had any clue regarding the bus timings. When I was loitering around, an auto rickshaw driver approached me. He said he was on the way back after dropping a passenger. When I agreed to his rates, he told me that there was a caveat; taxi car drivers can stop me as the autos are not allowed to pick from the airport. He narrated the incidents where the travelers were forced to take taxis in preference to auto rickshaws even though pleaded for the cost involved. I thought of taking this challenge and luckily no one stopped me.

Learning: if Auto Rickshaws can drop passengers, why cant they be allowed to pick. never understood the logic.

Tuesday, December 11, 2012

JUDICIAL ACTIVISM IN INDIA- An Overview


By Arjun.M, Administrative Assistant, Centre for Public Policy Research

                          Judicial activism can be described when the judiciary steps in to the shoes of the executive or the legislature and embarks on the works and privileges of the other two organs rather than interpretation of law. This topic has assumed immense significance because today everything from river pollution to the selection of the cricket team and even the disposal of waste has become the purview of Judicial Activism. The Supreme Court of India in a recent judgment on May 5, 2010 in Selvi v. Karnataka considered the constitutionality of the investigative  Narco analysis technique holding it permissible only when the subject consents to its use. The decision taken by the Supreme Court of India about the 9th Schedule of the constitution deserves great attention.  It was an example of excessive judicial Activism. In this case, one of the most controversial judgments of the Supreme Court was that the ninth schedule of the Constitution was open to judicial Review.  The common citizens have discovered great relief in Judicial Activism   because of the inefficient administration and nonperforming of the other organs of Government and the wide spread corruption and criminality in the political sphere.  In many cases the courts acted in the right direction but in certain instances it made upset the constitutional system of separation of powers.  Today judicial activism has touched almost each and every aspect of life ranges from human rights issues to maintenance of public roads!

                                         Presence of an independent and impartial judiciary is an essential pre requisite for maintaining the essence of Democracy. In India the constitution was made the supreme law of land. The Executive, the Legislature and the judiciary are its creations. The Legislature makes laws, executive executes the laws and the judiciary interprets the laws. The courts were made custodians of the constitution. The judiciary in India commands considerable respect from the people. Judiciary used to look into the constitutional validity of a legislative measure or executive action and then declare it null and void if it is against the provisions of the constitution. This is known as the power of Judicial Review. When judiciary, under the guise of interpreting the law goes a step beyond and ends up giving the country new binding law which is usually different from the existing one then it constitutes Judicial Activism. The lack of concern by the Legislature for some pressing problems of the people and the near disappearance of responsible and responsive governance by the executive have compelled the courts to enforce the rights of citizens through novel and innovative strategies to meet the needs of the times. Whether it is environmental pollution, human right issues the court is upholding the constitutional rights. According to Anil Divan the famous lawyer, the great contribution of Judicial Activism in India has been to provide a safety valve and hope that justice is not beyond reach. It has flourished in India and has acquired enormous legitimacy with the Indian Public.

Brief History      
                               
 In the initial years of 1950-67, the Supreme Court adopted the attitude of judicial restraint in which the court gave a strict and literal interpretation of the constitution. The nature and scope of judicial review was first examined by the Supreme Court   in A.K. Gopalan case where it accepted the principle of judicial subordination to legislative wisdom. But on the whole it limited itself and exercised judicial restraint.   The second phase unfolded with the Golaknath case which resulted in on open conflict between the judiciary and legislature. The parliament asserted its supremacy and the Supreme Court asserted its power of Judicial Review, which resulted in a series of constitutional amendments in which the parliament tried to limit the power of Judicial review. In the Emergency of 1975-77, the judiciary was made subservient to the legislature and executive. In Golaknath case, the Supreme Court gave an unprecedented judgment, which was clearly a case of Judicial Activism. The reason of imposing emergency was the decision of Allahabad High Court setting aside the election of Prime Minister Indira Gandhi to the Lok Sabha. The 42nd constitutional Amendment Act was also passed which put new limitations on the judiciary. After the emergency the 44th constitutional Act was passed which restored the judiciary’s position as it had existed before the emergency. In Minerva mills case the Supreme Court declared judicial review as part of the basic structure. Since 1980’s we saw the emergence of Judicial Activism as a powerful tool in Indian Polity. Thus now we find that the Supreme Court is no longer exercising judicial restraint. But in fact, it has taken up Judicial Activism so much. A court giving new meaning to a provision so as to suit the changing social or economic conditions or expanding the horizons of the right of the individual is said to be an activist court. Thus has given birth to Judicial Activism. In the words of Justice J. S. Varma “The role of the Judiciary in interpreting existing laws according to the needs of the times and filling in the gaps appears to be the true meaning of Judicial Activism

 Recent trends in Judicial activism

                                    It is generally understood that when the executive and Legislature are apathetic and fail to discharge their obligations it becomes the responsibility of the judiciary to adopt this activist approach. In the recent years the courts have adopted a pro active role to make up for the inefficiencies of the Executive. Thus the courts have passed several judgments in various areas of life.  Famous Author Subhash Kashyap says, “What has come to be called hyper activism of the judiciary draws its strength, Relevance and legitimacy from the inactivity, incompetence, disregard of law and constitution, criminal negligence, corruption, greed for power and money, utter indiscipline and lack of character and integrity among the leaders, ministers and administrators. As a result of this a vacuum was created in which the governmental machinery seemed to be totally helpless with the corruption in legislative and executive fields. The vacuum was filled in by the judiciary”. Judicial Activism has touched almost every aspect of life. Be it the case of bonded labor, illegal detentions, torture and maltreatment of women, the implementation of various provisions of the constitution, environmental problems, health, sports etc the courts took cognizance of each case and laid down various judgments to protect the basic human rights of each and every member of society. Judicial Activism has been criticized by politicians and some constitutional experts while it has been warmly welcomed generally by lawyers and the public. It is important to note that judicial Activism has so many merits but it has certain demerits. Supreme Court by evolving the doctrine of basic structure of the constitution limited the power of the parliament to amend the constitution. It was an innovation which widened the court’s power of Judicial Activism to an unlimited extent. The emergency of 1975 and lifting it in 1977 constituted defining moments for judicial Activism in India. Judicial Activism earned a human face in India by liberalizing access to justice and giving relief to disadvantaged groups and the have-nots under the leadership of Justice V.R.Krishna Iyer and Justice P.N. Bhagwati. .  The court’s increased activism has been good and contributed a lot for India’s democracy.  The expensive, technical justice now becomes inexpensive and non technical through the growth of Public Interest Litigations. The important question today is not whether the Supreme Court could activate its judicial role, but to what extent the concepts of Judicial Activism and creativity are exercised.

Conclusion
The major criticism of Judicial Activism is that it is unconstitutional as the authority of legislative and executive is usurped by the judiciary which is not elected by the people.  The judiciary has encroached upon the jurisdictions of the executive and legislature and other independent and autonomous bodies. Through judicial Activism the Judiciary sometimes enters an area where it has no expertise and competence. In some instances Public interest litigations may be misused for populism by individuals and groups. Judicial Activism may upset the constitutional system of separation of powers along with checks and balances. It cannot be denied that the opinion of a single Judge is essentially a subjective opinion.  It cannot be as objective as a decision made around 500 parliamentarians. What is necessary is that  each  organ of  government  should discharge its  duty duly  and  according to the  constitution an when this happens the courts  will also  find  no reason to interfere  in the  activities  of  other  departments of  government.

It is very important to note that it must not lead the government by judiciary. Frequent confrontation between the Legislature, Executive and the judiciary will also damage our well established democratic system of governance. Members of both the institution have sworn to uphold the constitution, which alone is supreme. Both sides will maintain and respect the line of demarcation of power under the constitution and will not allow a conflict to develop between them.



Wednesday, October 31, 2012

Clinical Establishments- Role of government and Healthcare Market




The Kerala Clinical Establishments (Registration, Accreditation and Regulation) Bill, 2009 which was in the news recently has invited the fury of Medical practitioners, clinical institutions, labs, pharmacies, scanning centres and agencies, as it intended to curtail their freedom. The healthcare sector in Kerala which is one of the most lucrative sectors has been contributing to the state’s GDP and providing employment to many people, especially women in Kerala. This includes people who are employed in Specialised Scanning Centres to nursing homes for old aged. With huge demand and high private participation, the sector has grown exponentially in term of numbers, reach and revenue. If you take the number of nurses alone, who constitutes the major part of the sector; the numbers are quite immense, taking into account those working in Kerala or India and those working abroad. Relative figures of people employed in laboratories, Scanning/Detection Centres are not available.

With its high literacy rates and progressive education programmes, Kerala trains a nursing workforce that is highly sought-after in the global labour market. This stands true for persons who are not nurses but possess the qualification or skills to be employed in various labs, pharmacies or clinical centres.  Relatively large number of people work similarly in clinical establishments in other capacities.

In the current scenario the scope and nature of nurses and other non-nursing personnels is determined to a large extent by the situations or market existing in Kerala. The huge potential offered by the healthcare sector through hospitals, nursing homes, clinics and various agencies is the key to the large population of students graduating from various educational institutions imparting training from nursing to pharmacy. Depending on their qualifications (GNM, ANM and BSc for nurses), they are part of the market which is supposed to support the health and well being of the entire population in Kerala and also abroad.

The proposed law throws the questions on whether it will stultify the market opportunities of nurses and others associated in the sector. The legislation requires mandatory registration of all clinical establishments which includes nursing homes, clinics and agencies. Further the Health Department can conduct quality checks and take action against erring institutions. It is a fact that the Healthcare and Nursing sector has become a business which involves millions of rupees. At the same time, it has been providing employment and catering to the requirements of a considerable population, maybe at a cost. The intent of the legislation is genuine, but the manner in which it is undertaken is doubtful. While regulation is required to check lack of quality or unethical issues, mandatory registration does not suffice. This stands true with most of the regulations, especially those related to Health and Environment. The recent Shawarma issue which made headlines is the perfect example of how health authorities failed in executing their mandate of checking and improving quality standards of food. They were more active in closing and sending notices to shops than assisting them to improve the standards or comply with it. A similar situation shall exist once the proposed Bill comes is passed and comes into effect.

The Department of Health and Medical Education and the various institutions like Medical Council and Nursing Council have been involved at various levels in regulating the nursing and other establishments. However, due to lack of personnels and facilities involved, they have not been able to function effectively. This has been one of the major reasons which has caused the sprouting of spurious institutions which has been duping students and people alike. The effect is appearance of unskilled people without means of employment, lack of skilled personnels to handle technologies used in scanning centres or laboratories and overall lack of professionalism in service. This has a larger impact on the persons who take the services of these clinical establishments paying huge cost but get sub-standard service. The issue is graver in case of healthcare services which directly affect the human life such as emergency services, basic life support, infection control etc.  Mandatory registration cannot be an assured manner for preventing let alone reducing such instances, as they can very well function illegally without getting caught by law. Awareness and education of various stakeholders is required to avoid and stop the malpractices which affect the sector.

The current Bill does not address the issue of quality standards demanded by various professions, clinical establishments and those employed in such establishments. The Government can do a monitoring role of checking any malpractices, lack of standards, complaints etc. But it shall not interfere in the day to day functions of these establishments or discourage people from setting up such establishments.  

Unfortunately, the situation in India is that tighter governmental control has only detracted entrepreneurs while on the other hand has created a monopoly for few players who were able to influence the system. In an unregulated environment like healthcare, definitely competition is bound to happen, but for the good. Maybe institutions like Competition Commission can check monopolies and give strictures on unethical practices adopted by various establishments. 

Education, training and skill development of nurses or clinician's employed or seeking employment in clinical establishments is one of the most important areas which the government needs to interfere. Unless we have specialised ITI like institutions for health care professionals, it will be difficult to expect quality from them. The scope of specialised and integrated programmes for  medical practitioners, pharmacists, lab technicians etc is immense and the government should assist private entrepreneurs to impart training. The government can provide funding to such institutions and also build favourable employment opportunities for those graduating and possessing the necessary skills. It is therefore important to provide better facilities and upgrade technologies in the existing colleges or institutions imparting such training. As it has been found that those people passing out does not possess the necessary skill required by the profession. On the job training shall be made a norm with frequent exposure trips and knowledge acquisition. 

Laws like the Kerala Clinical Establishments should be focused on creating standards, educating people, and assisting establishments to build a quality environment for co-creation and co-habitation. Over the years, the healthcare market itself shall break the bad eggs with the help of the monitoring lens of the government.

Prepared by Madhu.S, Team Lead, Centre for Public Policy Research (project@cppr.in)

Friday, October 19, 2012

Tryst with Indian Railways....

by D.Dhanuraj

Couple of months ago, I had applied for Shubh Yatra card issued by Indian railways. Within a few days, the card was delivered at my office. Then I realized that I should be a frequent 2 tier (at least) passenger to make use of the benefits offered by the card. But I am happy with one aspect of the Shubh Yatra card which is nothing but, I don’t have to take platform tickets any more, while I am card member. 

These days, I have travelled extensively in Indian Railways and many times I could reserve tickets using online Tatkal system thanks to some changes in the rules in the game.

Yesterday, I wanted to book online another Tatkal ticket between Trichy and Ernakulam. I waited for an hour before I could realize that IRCTC server is down. It happens so most of those precious times for an online  tatkal booking passenger. 

Since I was staying very near to Chennai Central Station (irctc code: MAS), I thought of walk into the reservation counter before the Tatkal quota gets over. I was walking to railway counter to reserve Tatkal tickets after many years (I suspect the last one was in 2009). So I was timid and tensed in my approach. As usual, almost all the counters (I believe there are 25 counters) at MAS had long queues. I joined one of those to test my luck this time. Then I noticed that every counter has exhibited timings for Tatkal booking as 10 am to 11 am. “What does it mean?” I asked my fellow ticket seeker.  He said there would have been separate queues for Tatkal booking between 10 am and 11 am. Another person remarked that after 11 am, there would not be any Tatkal Booking. “How can it be?” I asked myself though I did not share it with others. After 15 to 20 minutes, it was my turn to reserve my ticket. I handed over the filled up form to the officer at the desk.  I was so happy to hear him that tickets were still available in Tatkal quota. But in the very next moment, I was thrown into a deep well, when he asked me for a photo copy of the ID card I am carrying. I pleaded with him showing my original ID card (my driving license) which carries my photograph also. He said without a photo copy, he could not issue the ticket.  I did not have the choice to argue on this account so I had to leave the counter. He asked me to get a photocopy of the ID card so that he could issue the ticket. 

I am sure that those who are frequent to MAS can imagine where are those photocopy shops!! They are across the street on busy Poonamallee high road. Rushing out of the MAS building, I gave up my interest to take Tatkal ticket as I was not sure whether I should stand in a queue again to approach the ticket counter. Later, I tried it again online… This time I was lucky and I got it.. I think the particular route between Trichy and Ernakulam is not so busy these days… But the questions remain answered for me;

1.       What is the point for asking a photocopy of the ID when the original ID is presented and the holder himself is present at the counter?

2.       Does it mean that Railways cross check thousands of Tatkal tickets issued everyday against the photocopy? Even if they do, how do they ensure that they are not bogus?

3.       While Indian Railways insists on reducing the paper print, why do they insist on a photocopy?

4.       If this is the case, the TTE should also ask for photocopy. Otherwise, how does he ensure the passenger is genuine?

5.       There was no information exhibited on this regard at the counter!! Why can’t they do it so that I would have taken a photocopy as an obliging citizen..

I feel sorry for the fellow passengers who do not have access to internet and smartphones. They would have terrible times with these kinds of unsavory policies.
 I am yet to understand the intent of this policy? What do they want to achieve? If you know, please email me or comment below…

I thought my bad experience with Railways is over. But no…. Last night, I had to board the train from Egmore to Trichy at 10.30 pm. The train was supposed to start at 10.30 pm from Chennai Egmore Station (MS). The train came to the platform only by 10.40 pm which surprised everyone as it was the station of origin. Then we had another shock waiting for us. My ticket was in 3 tier (B2). There was no B2 compartment (“we could not  find it”, that is the better expression) but only an extra sleeper class (SL) compartment. All the passengers boarded that SL coach which was in the position of B2. Later we are informed that there are changes in the berth numbers.. in the middle of night TTE woke me up and gave the refund chellan… He explained that both B1 and B2 had malfunctions so that there were no other choice but to replace them with SL.
Today afternoon, I went to Trichy station to know more about the refund rules. I was more curious about the procedures than the refund money. As I expected I had to move from counter to counter and from officer to officer. At the end, I was directed to Claims and Refund session in Divisional Manager’s office. Since mine was an e-ticket, I was asked to take print out and send it to Claims officer sitting in Southern Railway office in Chennai by post. I was wondering the cost involved including the time and resources in all these processes. Who is bothered? Anyway, I will try this out as I am curious to know how the system works…

While coming out of the claims office, I noticed a Malayali couple sharing their grievances to a police officer. Hearing them, I approached them. They were on the way to VELANKANNI from KOLLAM in Kerala. On the way, they were pick pocketed. I gave them some money.  Receiving the money, they told me that they would pray for me in the church tomorrow. They have strong belief in The Mother of  Velankanny.

I wish they (in fact, all of us) pray to The Mother to improve the Indian Railway System……………….


Wednesday, September 12, 2012

Emerging Kerala - critical perspective


By D.Dhanuraj

India’s performance in London Olympics resulted in high TRP rates for Non-Crickers in the recent times. Many argued that India’s medal tally will be doubled and the country will be reckoned as a sporting power by next Olympics.  While analyzing the medals tally and toppers performance in the Olympics, one can easily figure out that each country has competed based on their strength and won the maximum number of medals in their strongholds. Many suggest that India should also focus on in the items like Boxing, Wrestling, Shooting etc to increase their tally in the coming games. Who knows what our Sports mandarians think about these strategies? Same is the case with ‘Emerging Kerala’ event organized by Kerala Government. By having this event, the Kerala Government wishes to present God’s own country as the most investment friendly State. Though I like the concept and intention behind the event, I have doubts about its outcomes and roadmap designed.

The weakest link of Kerala State has been the dwindling land space. Unfortunately, almost all the discussions and projects in Emerging Kerala over emphasizes the availability of land. The State has a very discouraging past where development works involving national highways, bypass roads and new railway lanes are either grounded or litigated for many decades. One of the major reasons cited is the lack of available land. If it is true, I must confess that the projections in the Emerging Kerala raise so many questions regarding the winnability factors for influencing investor’s mindset. At the same time, pace of infrastructure development is important for investors and entrepreneurs to get attracted to a new destination for the investment and this event happens in the background of poor roads and connectivity to the different parts of the State. It lacks improvement in facilities and in that case the investments will be confined to three or four cities of Kerala ultimately leading to the poor urbanization outcomes.

Many a times, I wonder what is the vision statement for Emerging Kerala (not at the event level) but for the future generations to visualize and implement. How many employment opportunities are we planning to generate through the proposed investments?  I could not find the linkages between the human resources available and the projects proposed. I felt most of them are into construction of buildings including those under Tourism. It is a State without a proper urban policy statement which can hit the prospects of investment in the State. My fear is that hype around the land transaction can make it worse for the middle class as it may lead to the rise in the real estate prices.  This in fact raises the questions regarding the events such as Emerging Kerala for a tiny State like ours. Many studies have shown that the conversion rates of the accepted proposals in the similar events conducted by other States of India are not so praiseworthy.
The Government should have avoided the controversy around Emerging Kerala. It can raise doubts about the Government policies and commitments in the minds of investors. We should have conducted a Non Resident Malayali summit before Emerging Kerala. More than 50000 Crores of money deposited by them should have utilized for building basic infrastructure and to build the confidence amongst other investors in such an event like Emerging Kerala.  Agreements should include the clauses like the timeline for the completion of the projects in a real time basis. Emerging Kerala projects the single window system for the investors. I would rather argue for 24 X 7 single window system that would be more beneficial and impactful compared to these stop gap arrangements during such an event.

I strongly wish that my thoughts are aberrations and the State Government has already looked into these aspects. If that is the case, I wish all the best for Emerging Kerala.

Saturday, September 01, 2012

Associations and Organisations in Film Industry- A case Study of Malayalam Film Industry


By Visakh Ranjith, Student of National Law University Bangalore and Intern at Centre for Public Policy Research 


The Malayalam film industry is smaller than its Tamil and Telugu counterparts. However, the industry is unique in the sense that Malayalam films are based on more artistic values. Not all films are made for commercial value; aesthetic and cultural values are also given due importance. This can be seen from the fact that Malayalam films have won numerous national awards. The industry has also contributed excellent technicians to the Hindi film industry and some of its directors are highly reputed for their skills. On an average, the Malayalam film industry produces around 70 -90 films per year.[1] However, similar to Tamil and Telugu segments, many films are not released in the theatrical market owing to lack of market interest and a large percentage of films released fail to perform. The number of Malayalam films released from 2004 to 2008 has been declined from 69 in 2004 to 63 in 2008.[2] The time taken to make a film depends on several factors – the budget of the film and its production values, the theme of the film, the availability of actors, the quantum of computer graphics usage, etc. In comparison to the Tamil and Telugu segments, the Malayalam industry is largely disciplined and completes films in a shorter time period with smaller budgets. The time taken to make a film varies from 90 days to 150 days, while the period of shooting is typically 45 to 50 days. The total revenue of the Malayalam film industry segment is estimated to be around INR 1.4 billion (Financial Year 2009), in terms of total revenue generated by films. This revenue is shared between the key players in the industry, namely the producers, distributors and exhibitors.
Last year, though, saw a marked change in trend. Superstar films failed to attract crowds and movies with new themes and small budgets reaped success. 95 films released including 6 movies dubbed from other languages. Total collections was just 120 crore and the loss to the industry is around 300 crore.  This 120 crore is not just from net collections but mainly from the satellite rights which is the major source of revenue. Most of it came from around 15 to 20 movies while the rest did not manage to make a mark.  Salt n Pepper and Seniors were super hits and Traffic, Makeup man, Rathinirvedam, Christian brothers and China town were hits.  Seniors distribution share was 4.2 crores. Salt n Pepper got 3.5 crore and its production cost including press and publicity was 2.5 crores. Traffic earned more than 4 crore from theatre collection and satellite rights. Its production cost was 2.75 crores.  Rathinirvedam became one of the biggest earners of the year by earning a distributor’s share of 2.5 crore and satellite rights of 1.75 crore. The movie was made at a relatively low budget of 1.4 crore.[3]
The structure
The change that the industry has undergone is not restricted to the quality and quantity of movies. The structure of the industry has also been changing for the past few years with associations and unions coming into play. Now, every stakeholder in the industry has an association/union to represent them. Associations/unions like Kerala Film Producers' Association, Kerala Film Distributors Association, Kerala Cine Exhibitors Federation, Kerala Film Exhibitors Association, Kerala Film Chamber of Commerce, Film Employees Federation of Kerala (FEFKA), Malayalam Cine Technicians Association (MACTA) and Association of Malayalam Movie Artistes (AMMA) have attained prime importance in the Malayalam film industry to the extent that being a member in these associations/unions has become necessary to be involved in any process of film-making in the industry. To understand the influence of these associations/unions better, it is necessary to look at how they were formed and what their duties and functions are.


The evolution of the association culture
The association/union movement in the film industry started at the national level with the formation of AIFEC which represented all the film workers in the country. From there, each language industry started forming unions/associations for themselves. These unions/associations started gaining power with time but the Malayalam industry still was not involved in this revolution. But the Film Chamber of Commerce was formed comprising of the producers, distributors and exhibitors as a trade body which was the first association in Malayalam. There was a parallel movement to make a fraternity of sorts and hence was formed the Malayala Chalachitra Parishad which was a group for everyone involved in the industry. Another association which was formed later on was MALCA which was not functional for long. [4]
The real union movement in Malayalam started with the formation of MACTA as a cultural welfare forum for the technicians in the industry. The successful functioning of the Film Chamber had inspired technicians to form an association for themselves and hence MACTA was formed. It started out as a welfare organisation with a strong foundation of brotherhood for the betterment of members, to conduct workshops and to STOP strikes and initiate negotiations. AMMA was also formed with the same ideals and aims around the same time.[5]
This system was set up with certain aims and goals to discuss not just rights but responsibilities too. But with time and change in leadership, problems started. Banning people from working led to negative feelings creeping in. Technicians started facing problems representing their interests to the film chamber. Also, people who work in both Malayalam and other industries had to take multiple memberships as MACTA was not affiliated to other unions/associations because it was not technically a trade union. And so, to increase the negotiating power of technicians, a decision was taken to form a trade union and hence, FEFKA was formed.[6]  The advent of a trade union was dreaded by producers and other players and they took an antagonistic stance. In this process, a lot of hatred and negativity came in among different stakeholders. In place of the feeling of fraternity that led to the formation of these associations/unions, antagonism came to define the new face of unionism. It needs to be seen whether these association/unions formed for the betterment of the industry have actually helped the industry or led to make the situation worse.
Kerala Film Chamber of Commerce
The Kerala Film Chamber of Commerce is a society comprising of the Producers, Distributors and Exhibitors in the Malayalam Film Industry. The main role of the Chamber is to lobby with the government for laws/rules favourable to the industry are enacted.[7] Laws regarding taxes are the main concern. Their major achievement in this area is that they brought down the entertainment tax which was as high as 48% to 25% in the past years.[8] The Chamber’s governing council consists of 43 members. The Chamber comes into play in the movie-making process for title registration and for getting three certificates that are necessary to obtain the Censor Board certification. The three certificates are: Title registration certificate, Publicity clearance certificate and Membership certificate.[9] It is to be noted that membership of the Chamber is necessary for the Producer to obtain these certificates and hence, to obtain the Censor Board certification. For a producer to get membership in the Film Chamber, he has to produce letters from all the main technicians and artistes of the movie he plans to make stating that they have made an agreement with this producer to participate in the making of the said movie. These letters have to be produced before the Executive Committee of the Chamber with the recommendation letters from two Executive Committee members following which, the application for membership will be kept pending till the producer produces the Censor certificate for the film.[10] When this is produced, the membership is granted. This is to make sure that only people who are genuinely interested in making movies will come forward and apply for a membership. The Film Chamber deals with only the Business aspect of the industry and is separate from the artistes’ unions and associations. Multiplexes have not taken membership in the Chamber.
MACTA
MACTA or Malayalam Cine Technicians Association is a welfare association of technicians working in the Malayalam film industry. It was formed under the Literary and Scientific Societies Act. Its functions included settling disputes regarding remuneration, issuing work permit etc.[11]. But now these functions are carried out by FEFKA.  MACTA is now just a welfare association which conducts short-term scriptwriting workshops/courses the talented students of which are given opportunities in movies that members make, provides help to members who are in need of it etc.[12]
MACTA has around 1500 members. MACTA and FEFKA have different functions and exist as separate entities. There are common members. Membership is of three types. Life Membership which is Honorary, Active membership which is for the people who are active in the field now and has a small per annum membership fee and Associate Membership which is for the people who work  as assistants and associates under the main technicians.[13] 
FEFKA
FEFKA or Film Employees Federation of Kerala is a union of film technicians formed under the Trade Unions Act. It is a self-regulatory body which has 16 separate unions for different technicians under it. In the directors’ union alone, there are around 600 members (including assistant directors). FEFKA was formed in 2008 when there was consensus that a trade union needed to be formed. In 2011, FEFKA got affiliated to AIFEC (All India Film Employees Confederation).[14]
Membership in FEFKA is necessary to work as a technician in the Malayalam film industry. For a newcomer director, first, a work permit has to be applied for from FEFKA. This work permit lets him start production. But only after he completes two movies, he is given complete membership. The newcomer Director also has to donate a certain amount to FEFKA for his membership. This amount is lowered depending on the needs of the director and is decided by the executive committee. An interview process is also in place to determine the person’s capability and credentials. FEFKA is also involved in settling disputes between technicians and other people in the industry. It also gives financial help to members who are in need of it.[15]
AMMA
AMMA was formed with to find out the issues concerning the Artistes, to analyse them and to find out possible remedies. Besides protecting the financial status of the members, AMMA also promotes and develops better relations between its members and other associations. Promotion and development of healthy relationships with associations of the similar spirit, is also feature among the objectives of AMMA. Helping the weaker section of the public, by introducing scholarships for educational purposes, housing schemes etc. also tops the list of priorities of the association by extending financial assistance at the time of natural calamities.[16]
AMMA also trains and develop the arts of action, dance, music, drama or other arts in the cine field or any other art by establishing colleges or institutes and to pay scholarships, prizes, merit certificates and honouring the scholars. AMMA publishes journals and magazines for developing Art, Culture and General Knowledge and thus contribute to the overall development of the artistes. AMMA consider it their privilege and professional obligation to the growing cine industry of Malayalam to conduct dramas, star-nights, dance and music performances and group discussions to boost up the artistic spirit and aspirations of the artists participating in it. To protect the members from unemployment and to help the qualified and needy members with financial help come under AMMA’s objectives.[17]
The organizational hierarchy of AMMA makes a clear cut division of duties and responsibilities- President, Vice-Presidents, Secretary, General Secretary, Treasurer, Executive Committee.[18] AMMA also maintains a library and conduct study circles, workshops, etc. and arrange lectures for the benefit of the members. To act as arbitrators in all disputes that may be submitted to them for arbitration by the members and others in film field industry gives AMMA a unique status as a body with much dignity and powers. It also collects and furnishes statistics regarding the various phases of the Malayalam film industry.
The role of the state
The oppressive taxation and indifferent attitude of the government indicates that it sees the film industry as a source of financial benefits. They have failed to recognize that the industry is in trouble and that theatre houses are disappearing. The huge amounts of loss suffered by different players, means that government involvement in the form of some sort of concession is required to keep the industry alive. The governments in other states have been taking steps towards this.
A major issue in which the state has been inconsiderate is in the case of the cine workers welfare fund. This fund has not yet been separated from the beedi workers welfare fund for which a G.O. is required.[19] According to the Cine Workers Welfare Cess Act, 1981 and the Cine Workers Welfare Fund Act 1981, an amount has to be deposited to this fund from each movie’s budget and so, a large amount of money has been deposited till now.[20] But since there is no awareness regarding the existence of such a fund and how to make use of it, most of the fund goes unused. The head office for the fund in Kerala is in Kannur because of the large number of beedi workers in Kannur.[21] This shows that the state has failed to recognize the needs of the film industry. There have been continuous requests from various associations for the separation of the two funds and to set up a head office in either Trivandrum or Kochi. Yet there has been no step taken towards this. The provisions of the fund, if used could alleviate a lot of the problems faced by cine workers now. The fund provides for many facilities like medicine, education etc. All this is largely unused by Malayalam cine workers.

Conclusion

The Malayalam film industry is suffering. But to suggest that there is no hope or that there is no solution to this suffering would be wrong. Profitability is still low for Malayalam films only because the resources that are available are not being exploited. What we have seen around the world in the case of the film business is that as the industry expands, revenue sources shift to those other than theatre collections. Be it home video, satellite or even internet, the avenues are many. Malayalam cinema is at that point in time where this diversification needs to happen. Producers are finding it hard to be committed to a business that involves such risk that it is possible that they might not even recover half the cost. The dependence on theatre revenue is reducing with satellite revenue becoming more important but there are many sources left to be explored. Tamil and Telugu film industries have developed a marketing strategy which makes their products appealing to the people of other states. According to a study, 25% of the revenue for Tamil and Telugu movies comes from other states.[1] Exploitation of the international theatrical is another area where Tamil and Telugu movies have done well. Malayalam cinema needs to venture into these arenas, if it hopes to move forward.
In Hollywood, the practice of releasing low budget movies straight to DVD, known as Direct-to-video, is followed. This has led to the growth of independent films and also provides for large revenues for the production houses. Films which after production are shelved due to different reasons like unavailability of distributors and willing exhibitors, certification issues or other such problems, can be released direct-to-video and some amount of the costs can be recovered this way. This will also provide incentive for more new talent to come in as the restrictions on their entry are reduced and there is more creative freedom. Right now the system in Hollywood sees direct-to-video as a fall-back but in China, the same concept has gained wide acceptance as a niche product. “Original Video”, as it is known in China, is not associated with low production values and poor storylines that the DTV movies of Hollywood are and has gained respect from the public for the content and from the film-makers for the creative freedom that it allows.
A film-maker who wants to make a film in Malayalam presently has two options – to go through the system which involves getting memberships in the appropriate unions/associations and going by their rules or to challenge these establishments and take the rough road. The associations and unions have set certain rules and regulations so that the industry has some sort of self-regulatory system. In some cases, we have seen that this system becomes too restrictive in nature and enforces their interests on the traders, artistes and technicians. In such a situation, since the system in place has a presence at every stage of the movie-making process, it becomes incredibly difficult to go against it. A producer, who decides he will not become a member of any association, might find it difficult to find a Distributor or Exhibitor. A person who chooses to challenge the system, in most cases, hence finds it extremely hard to fulfil his purpose. To brave the resistance of an entire industry is not an easy task. But to say that it is impossible to do that would be wrong as we recently saw Director Vinayan pull it off. But it is to be understood that the quality of the film will suffer when you do not have access to the great pool of talent of this industry. This means it is almost impossible to make the movie that you want to make without being part of the system. When such a restrictive system exists, the entry of new talent is blocked and the industry suffers a loss as this new talent will move on to find other avenues to express their ideas. This can be seen in the recent tendency of artistes and technicians to migrate to other language film industries in search of either higher pay or more creative freedom. So it must be understood by these associations and unions that if they muscle new talent out, it will come back to bite them as their success is not permanent in an ever-changing industry because at some point in the future, the audience will reject anything that is unoriginal.
To blame the associations and unions for this situation is not entirely correct. The system is not the cause of the problem, the misuse of it is. A feeling of insecurity among the leadership of these associations and unions seems to be at the core of this. This has to change for the industry to become more open. These associations and unions were formed with the aim of promoting Malayalam cinema. Today all those ideas have been lost and a new sense of authority has taken over at the helm of affairs. It has reached a point where they are concerned about only their rights and not their duties. For this to change, a joint effort from all sections of the industry must take place. The old ideals of fraternity and brotherhood must be reintegrated into the objectives of these associations and unions and understanding the needs of the industry, a system that works must be arrived at.
Whether a system is needed at all is a debate that needs to be looked at from all angles. On one side, there is the argument that creative expression should not be restricted or regulated. Arguments for the system would say that the people involved in a trade which involves such financial risk need protection. Dispute resolution is another area where the involvement of associations and unions has been justified. With a considerable section of the industry especially at the lower levels of employment benefitting from the protection that this system provides but the creative freedom of others being curtailed, it is hard to weigh one against the other. To do that would be to choose between cinema as a livelihood and cinema as a medium for artistic expression. To pick one would not be fair to the other and so, this debate will go on.
International film studios are producing and distributing regional movies. Of the top six international movie studios, four are involved in distributing or producing Indian movies. A number of Indian film studios and media and entertainment companies are acquiring international theater chains and production studios. Small-budget niche films with high-quality scripts have recently gained acceptability among mainstream audiences. Strong content and word-of-mouth marketing have helped studios to generate high returns from these films. Indian studios are realizing the importance of direct-to-consumer engagement through social media to generate positive word of mouth during the release of a film. Some are charging customers to participate in exclusive online chats between lead actors and audiences prior to a release. The way cinema is perceived is changing rapidly and in this wave of change, the Malayalam industry must not stay behind. By adopting techniques that are feasible for the industry’s dynamics, it should look to move on to new methods and ideas. There is no doubt that change is necessary. But it is essential that the change be a step forward.


[1] Supra note 14.




[1] Supra note 14.
[2] Supra note 14.
[3] Data released by Producers Association.
[4] Personal interview with Mr John Paul.
[5] Id.
[6] Supra note 24.
[7] Personal interview with Kerala Film Chamber of Commerce staff.
[8] Id.
[9] Supra note 27.
[10] Supra note 27.
[11] Personal interview with MACTA staff.
[12] Id.
[13] Supra note 31.
[14] Personal interview with FEFKA staff.
[15] Id.
[16]Collective forum for the common good”, http://malayalamcinema.com/amma-history.htm, last visited on 29th February, 2012.
[17] Id.
[18] Supra note 36.
[19] Supra note 24.
[20] Cine Workers Welfare Cess Act, 1981 and the Cine Workers Welfare Fund Act 1981.
[21] Supra note 24.

Wednesday, August 22, 2012

Nehru Trophy Boat Race: An Outsider's Perspective


It’ s been in my wish list for a long time; To have a  glimpse of the Annual Nehru Trophy Boat Race in Alappuzha, not in television, instead  live from the pavilion. Like any other Keralite, I have seen the event in television several times, taken part in ‘valamkalli song’ (traditional songs for inspiring the boat men) competition and wrote long essays in school about the boat race, its history, cultural relevance, Nehruvian connection and so on.  We have heard legends about those prime contenders for the trophy: karichal chundan, chambakulam chundan, sri ganesh etc etc, each representing a ‘kara’ (locality) in Alappuzha. But then, that sight of hundred feet long boats, competing each other with more than hundred rowers on board, thousands cheering for their favorite team and heading for a photo finish. Always wondered whether the best of LCD screens can recreate that image and ambience?


At last the world conspired for me, and my dream came true. As we set out to Alappuzha last week, little did we knew that we were about to witness one of the most poorly organised events ever attended.


We reached the venue much before the inaugural ceremony to see a huge crowd before the entrance. That was expected and we waited. As the wait got longer, my friend shouted that we had valid passes and should be let in. The police constable at the entrance smiled, as we got response from the crowd. All present there had VIP passes, but there was space for none. Affluent locals had already occupied the galleries, with or without passes, and the late comers could just go back. We argued that we had tickets and we had a right to entry, but with no success.


All we could see were those temporary pavilions made of wooden planks, which were already jam-packed and more pressure on them, they could even collapse. Then the preliminary rounds started, and I could only hear the crowd roaring as the boats crossed our pavilion, but a sight of those mighty boats, was just unattainable. Without doubt, I was devastated.


And then it happened, a portion of the crowd rushed towards the tourist gallery and took away the back curtain tearing it into pieces and in the process clearing the view for the less fortunate people like us waiting behind. No one objected, not even the police men in attendance. I could see those foreigners complaining and staring at us, but the view was perfect, though we had no seats. As the race progressed, we could watch police forcibly grabbing miscreants and drunkards from the gallery and even an instance of someone misbehaving with a foreign woman. We left the venue before the finals, as waiting for the event to get over didn’t seem a good idea. As we left, we could hear one of those felicitation speaker appealing to Union Minister and Lok Sabha Speaker present,  that boat race should be given due consideration and be upgraded as an Olympic event. The crowd cheered for him, everyone badly needed some humor!


The entire episode has left me pondering as to what went wrong? An event which is so unique and rated as ‘must see’ can’t be so worse. Most shocking is that there isn’t a permanent gallery for watching the boat race which celebrated its 60th year of existence this time. No excuse can justify this inefficiency; the event is certain, date permanent, venue remains the same and 60 years is a very long time for gathering some fund.


The boat race is organised by Nehru Trophy Boat Race Society (NTBRS) along with the District Administration of Alappuzha. Interestingly, organising committee is an ad hoc one. Every year, a new committee is constituted headed by the then District Collector of Alappuzha. Various sub committees are also formed, all of them headed by government officials, for example finance committee this year was headed by RDO of Alappuzha, Publicity Committee by District Information Officer of Alappuzha, Food Committte by Tahsildar of Ambalappuzha and so on. All of them might be experts in their own domain, but there is little argument that an event of this magnitude requires full time commitment and more importantly should engage professionals.


Press Releases available in Alappuzha District Administration website shows that the preparatory meetings for this year’s event started only few months back. Further, Alappuzha RDO was even transferred for irregularity in organising the event. (Source: The Hindu, Alappuzha, August 6th, 2012 ). Even more, the present District Collector of Alappuzha took full time charge only on July 30th, earlier he had extra charge of Pathantitta District, almost twice the size of Alappuzha. (Source : Press Release dated July 30th ,2012)


People’s representatives in these committees are local politicians of the ruling party nominated by government. On top this, the event website shows that a tender was called from reputed event managers for organising the event. Not sure whether the tender was awarded, but if yes, for what?


News paper reports reveal more interesting facts as to how bureaucratically the event is conducted with little local participation. It has been always the grievance of the participating teams that they have no representation in organising the event. (Source: The Hindu, Alapuzha, July29, 2012).It is even alleged that this year’s event logo was a mere modification of a popular template available in internet. It is  even shocking to know that the results of 2011 competition is not yet settled, as the team which completed  first was disqualified for a trivial violation; they were not in uniform as per the rules of the competition. The team is facing permanent disqualification and approached High Court of Kerala. The court permitted them to participate this year, but the case is still pending (Source: Business Standard, Kochi, July 26th, 2012). We need rules for any competition, but what if the rules spoil the spirit of the event? Now supposing the rule was genuine, I wonder why the team not in uniform was permitted to participate, as the rules permit the referee prevent them at the starting point. Let me also pose another hypothetical question. What if the same team had won the competition this year and subsequently disqualified as per 2011 rules. Will that mean the race will have no winners for these two years?


My intention  is not to accuse anyone but to get some answers. I have seen religious groups across the state hosting their annual festivals, in far more organised manner. The distinct feature has been that all of them have developed a permanent  organising team and the people at the helm continue for a longer period. Can’t we have an organising team for the race with more local participation and which is more permanent? Or is it the partial government funding which mandates such control for the event? But then, do we need administrators as high as District Collector to micro mange the event? Does that make the event any better? Or do we still retain a notion that only a governmental supervision can ensure efficiency and transparency?

Reference:
Official Website of Nehru Trophy Boat Race: www.nehrutrophy.nic.in
Official Website of Alappuzha District Administration: www.alappuzha.nic.in