Sunday, 15 November 2026

Foreword to my forthcoming book 'Gautam Bhatia vs CJI Chandrachud'

Constitutional scholarship is not necessarily undigested matter, coloured and rendered pungent by the bile of the asshole who expels it. It may be utile and alethic- albeit in a modest, self effacing, manner. However, at the best of times, there are diminishing or negative returns to it.

Incontinent Constitutionalism is either a paranoid or bigoted type of  logorrhea based on a crazy view of law and politics or else refers to a collective akrasia featuring an impetuous (propeteia) or passional claim which is too weakly (astheneia) resisted by that faculty whose task it is to decide in a judicious manner. 

'Moral panics' may cause this. But so may genuine threats. I scream and shit myself, when raiding the fridge at midnight, if I see a squat and sinister figure approach me with a knife glistening in its hand.

 This is perfectly natural. Mum is wrong to say that I should consult a Doctor about my fouling my pyjamas every time she approaches me with the intention of cutting off the crusts of the bread I intend to use to make myself a sandwich. 

I am not saying it is irrational for me to shit myself- Mummy should keep a sufficient quantity of crustless sarnies by my bed so as to obviate the need for my mid-night fridge raiding- but, sensu stricto, if I urge this claim in a court of law, I would be guilty of Constitutional Incontinence even though the basic structure of Boddhisattvaji, Dr. Ambedkar's, Constitution, mandates nothing less than my 'dirty protest' (which was carried out in the UK & thus is covered by McFeeley and Others v. the United Kingdom (1980) ) against Mummyji's (surely caste-based?) atrocity against me 

I should explain, I have never undergone upanayanam & thus am acahrabrashta and arguably Dalit. What is certain is that I am empirically untouchable because I keep shitting myself. In either case, Mummyji, as an Indian citizen, is culpable under SC/ST Atrocities Act. I may mention, Modi's Majoritarian (i.e. Fascist) Regime defied the Bench's Kashinath Mahajan decision by rushing through a legislative amendment. It is shocking that a supine, horribly Hindutva, High Caste Bench, validated Modi's 18A amendment in 'Prithviraj Chauhan'. 

Be that as it may, the fact remains that the Constitution may be undermined by incontinent reactions to what are perceived to be exigent circumstances or 'apadh dharma' as the Hindoooooos have it. 

A different type of incontinence arises from pure 'virtue signalling' or 'wokeness'. But, it is more likely to create a popular backlash and thus the Bench, and that portion of the Bar which isn't subsidised by an alien 'eco-system', are likely to keep their distance from it. 

Scholars (i.e. shitheads educated way above their intelligence) become guilty of Constitutional Incontinence when

1) they pretend that both statute & Case law saw the opposite of what is clearly the case. This may take in those with no knowledge of the law. But it is charlatanry of a mischievous type. In this book, I  examine Dr. Gautam Bhatia's writings, and find many examples of this. Indeed, I am not aware of a single instance where Bhatia is correct about the ratio of a Case he mentions. 

2) they pretend that the Judge, qua Judge, has no Hohfeldian immunity attaching to their conduct in Court. Bhatia says that a Judge can be sued for libel for remarks he makes from the Bench! He argues that Judges can be cross-examined as witnesses even if there is no accused and therefore no Trial Court!

3) they pretend that there was some Constitutional Golden Age from which the present situation represents some extraordinary and very sinister departure. If you keep crying wolf & no wolf appears, you don't just harm your own reputation. You disable Society's defence against actual wolves. 

Incontinence, it must be said, is its own punishment. When I shit my pyjamas, Mummyji's conscience is not greatly pricked. Like Soniaji, with respect to Rahul, she knows she has all she could possibly do for her cretin of a son. 

Since Mummys matter, I am obliged to observe that Socioproctological Investigation can say little about them. 

Do Constitutions greatly matter? No. Power arises from Expectations regarding  economic resources, military strength, and public sentiment. 

Constitutions only matter to the extent that they affect Expectations. But, there is always a more direct way to do so with reference to any significant parameter. 

Written or unwritten constitutions have proved wholly ineffective in preserving any particular distribution of power. In the jargon of Economics, a Consitution is a 'Social Contract' but of an incomplete type- in other words, as circumstances change, control and beneficial rights are reassigned. This is a feature, not a bug. Why? Knightian Uncertainty. Future states of the world are unknown and this militates for 'Regret Minimization' rather than 'Expected Utility Maximisation'. It would be foolish to ascribe some magical power to the Constitution or to take it as a Sacred Scripture. All law is defeasible and the Constitution especially so. 

The Law is a service industry. Remedies are linked to Rights' violations by a vinculum juris or bond of law but, if the remedies are not incentive compatible they may be rationed or have a perverse effect. A Constitution, to survive, must permit Economic growth and the military and political survival of the State. As David Hume pointed out long ago, Justice must pursue Utility. If it creates distutility it will be either disintermediated or destroyed. 

For lawyers, the Constitution- or claims about it- may underlie or reinforce particular arguments but grand rhetorical flights in this context are mere puffery. Judges too must give up the notion that they can do 'complete justice' or that, in Amartya's Sen's terminology, the Nyaya (judgments) of the Bench can replace the Niti (policies) of the Netas (politicians). 

In India, in the 1990's, the Supreme Court unitlaterally made itself self-selecting in direct violation of the written Constitution. This was a period of weak coalition governments and it was convenient for the Legislature to avoid deciding 'wedge issues' by kicking the can down the road into the courts. After 2014, with a strong Prime Minister who had a majority in Parliament (till 2024) the balance of power shifted. The Court kept its privileges but, it was noticeable, it was delivering more than what the Executive could achieve on its own- e.g. ruling that Jammu & Kashmir had no shred of sovereignty or ordering the building of the Ram Temple. This was a period when economic centralisation also increased. Those who swore their religion was the Constitution and who hoped the Bench would frustrate the ruling party at every turn, became increasingy bitter- not to say unhinged.

One such was Gautam Bhatia who in a recent book asserts that the Indian Constitution remains a “terrain of contestation between different visions of power”. Such is not the case. The Supreme Court says it alone has the right to interpret the Constitution. Sadly, its interpretation can change from day to day as bigger and bigger constitutional benches overrule previous decisions. The Bench can, in theory, use contempt proceedings to enforce its orders but, for some years now, senior advocates have been scandalising the court with impunity. Meanwhile, attempts to streamline the justice system- e.g. by setting up commercial courts or by appointing Court Managers- have largely failed. Malaysia has managed to preserve the independence of the judiciary while greaty increasing efficiency. More recently, Pakistan, curbing the power of the Bench, has pushed through drastic reforms greatly reducing case back-log. India, despite orders from the Supreme Court, seems unable to emulate the Malaysian example. 

Currently, we have a well functioning Executive and Central Legislature. Attempts have been made by lawyers to undermine the independence of the judiciary (as stated by the Bench in the Justice Loya case) and now, by Rahul Gandhi, to undermine the independence of the Election Commission. However, the Executive remains immune. If the BJP win the UP election in March 2027, the 2030s will belong to Yogi Adityanath. The Bench may achieve more by doing much less. What of Centralisation (which, from the fiscal point of view, has increased in India & UK)? Will States get more revenue raising powers? Probably. A 'one size fits all' Centralised approach has run into problems. We may be moving to 'Tiebout models' so that different States can specialise in different things with an appropriate fiscal mix of their own. 

India follows the Westminster model. Parliament is supreme but may not assert its supremacy if it is divided or has weak leadership (i.e. the Executive, which commands the confidence of the legislature, is of poor quality or lacks popular support). Since the country is unitary and there is no 'dual sovereignty', the role of the Judiciary is limited.

Dr. Bhatia thinks there are six axes around which power is distributed under the Indian constitution. He does not understand that countervailing power is not itself power. Indeed, for any distribution of power (i.e. the ability to achieve an outcome) there may be a distribution of countervailing power such that everything cancels out. Nothing can be achieved. There is deadlock or stasis. 

Some Indian judicial decisions appear bad law- e.g. the notion that a diplomat can waive his own immunity rather than that only his State can do so- but, it must be said, Judges appear quite sane when compared to the hysterical, wholly illogical, ravings of some 'senior advocates' and soi disant constitutional scholars. 

Former Chief Justice of India, D.Y Chandrachud, is a brilliant scholar and was a prolific writer of judgments of great significance. It may seem unfair to compare him to Batty Bhatia who, I believe, writes Science Fiction. Nevertheless, Socioproctology is no respecter of persons for the same reason that Jurists say- Lex non distinguit inter altos et humiles. A fault found in a fool may also be found in a sage. The difference is we can repair the faults of the sage. Indeed, he may do so himself. Chandrachud's life, as a pure constitutional scholar, is- so to speak- just beginning. Future generations may view him as a Hohfeld or Hart. Equally, his fundamental silliness may grow more egregious yet thus fitting him as an increasingly fertile field for Socioproctological Investigation. 

One final point. In India, uniquely, a Dynasty took root. Assassination tempers autocracy. Might it do the same to asininity? We hope not. Still, the true test of the Constitution will come on the day Indira Gandhi's grandson assumer powers equal to hers. Incontinent Constitutionalism must be curbed or else a bloody saga will be repeated to the great hilarity of India's enemies. 

  

Friday, 13 November 2026

Batty Bhatia on Justice Loya case

Back in 2018, Gautam Bhatia wrote-

The First and Final Tribunal: The Judge Loya Case and the Blurring of Judicial Functions

Judge Loya passed away on December 1, 2014, while presiding over the politically-charged Sohrabuddin Sheikh encounter case, ostensibly because of a heart attack.

He had attended the wedding of the daughter of a colleague and was staying in a Government rest-house along with four other judges. He had a heart-attack. His colleagues took him to a hospital, and then another hospital. Sadly he died. Did his t judicial colleagues kill him? Had they previously sodomised him? Were they taking drugs? Was this a case of 'chemsex' gone wrong? 

No. The guy had a heart attack. Judges don't sodomise each other. They don't kill each other. This was and is obvious to all.  

In November 2017, The Caravan magazine published two articles raising doubts about whether Judge Loya had died of natural causes.

The Caravan magazine is a piece of shit.  

There was considerable furore, and after a series of events, which are not relevant for the purposes of this post, various petitions were filed before the Bombay High Court and the Supreme Court, asking that the death be investigated.

Because the Indian legal system is full of shitheads.  

A bench presided over by the Chief Justice of India pulled up all the petitions to itself, and delivered its judgment last Thursday, dismissing the petitions, rejecting the request for an enquiry, and holding that “in so far as the circumstances relating to the death of Judge Loya are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this Court.”

Judges don't kill each other. In India, hitmen are cheap.  

The tangled history of the Sohrabuddin trial

a Muslim gangster was killed by the police. It is obvious that this was an 'encounter killing'. The Congress governement of the time tried to frame Amit Shah, the then Home Minister of Gujarat, for ordering the killing. Naturally, this greatly increased the popularity of Shah who came to be seen as a protector of Hindus from Muslim gangsters. The fact that Sohrabuddin's wife and a Hindu aide of his were also killed, showed Shah's commitment to female empowerment and secular values.  

(including how the Supreme Court dealt with some problematic aspects of it in its judgment), the Court’s decision to transfer a pending petition of the Bombay High Court to itself, the unavoidable political backdrop of this case, and the circumstances surrounding Judge Loya’s death itself, are all issues that have been debated elsewhere, and will continue to be debated.

When UPA was in power, the central government tried to jail BJP Ministers. Then the BJP came to power. The misuse of the judiciary for political purposes was somewhat curbed. Why? The thing backfires. Take the case of a Hindu nun accused of riding around on a 'gold motorcycle' inciting terrorist violence against Mulsims. This lady was sent to jail but nobody believed she was guilty. Thus, she was able to defeat a senior Congress leader in his own pocket borough and thus get into Parliament. She was a bit batty and the BJP did not give her a ticket in the next general election.  

I do not intend to address any of them here.

Because the thing was a pile of dog shit. The allegation was that Loya had been killed because he refused a big bribe from the Chief Justice of the High Court. This is mad. A lucrative case will be transferred to a pliant judge who will kickback a major portion of the bribe money. 

Nor do I intend to critique the substance of the Supreme Court’s judgment from a criminal law perspective – that too has been done elsewhere.

by a pile of dog shit.  

I will also not critique the Court’s withering attack on the motivations of the PIL-petitioners, and on politically-motivated PILs in general – an attack that is justified in principle, but one that seems particularly jarring in view of the many absurd and politically-motivated PILs the Court indulges on a regular basis, including but not limited to the PIL for making the national anthem compulsory in cinema halls (which the Court entertained through multiple hearings for over a year).

The Bench was foolish enough to admit PILs on the basis of Articles 32 and 226 with the result that a lot of judicial time has been wasted. The bigger problem is that the Bench has no real doctrine of political question. It is usurping Legislative and Executive authority. However, it is always willing to overrule itself. Thus the upshot is just more delay and waste of judicial time. As many have observed 'the punishment is the process'. 

However, what I do want to address is the Supreme Court’s approach to this case,

It was a good one. It put an end to a nuisance. Had it not done so, anytime a cat dies, you can have a PIL accusing Rahul Gandhi of buggering it to death. 

and the larger ramifications for its role as a constitutional court.

There are none.  


The relevant prayer before the Court was that an enquiry be ordered into the death of a judicial officer, that was, until now, believed to be natural.

Because it was. Judges don't kill judges though we can't rule out their having buggered my neighbour's cat to death. The odd thing is I still sometimes see the cat.  

The petitioners argued that certain facts had come to light

none had. It is usual when the man of the house dies for the distraught widow to claim black magic was used against him or else he that there was some gigantic conspiracy of a criminal nature.  

that raised a non-trivial possibility that the death was not of natural causes – and that this warranted an investigation.

Why not an investigation into the supposed buggering to death, by Rahul Gandhi, of my neighbour's cat?  

In response, the State of Maharashtra – which had conducted what it called a “discreet enquiry” after The Caravan articles came out

i.e. they discovered the sister or the widow or some such person, was distraught when she blurted out some nonsense to a 'reporter' from the Caravan magazine. Her son clarified that the father had died of natural causes. This wasn't a case of homosexual S&M hijinks gone wrong. Nor was there some criminal conspiracy with political overtones. Daddy wasn't taking it up the arse. Nor was he so stupid as to refuse a nice bribe offered by a superior. It is another matter that an honest judge can recuse himself or otherwise get a lucrative case handed to some more mercenary colleague. 

– argued that there was nothing to suggest that the death was unnatural, and that whatever doubts had been raised by The Caravan’s stories were susceptible of an entirely innocent explanation. The State of Maharashtra also obtained the “say” of four judicial officers who were with Judge Loya during his last hours and after his death, and who affirmed that there were no suspicious circumstances surrounding the death.

The Bench took action because it is bad for the judiciary if the idea gains grounds that judges kill their colleagues if they refuse to take a bribe.  


The evidence before the Supreme Court was entirely documentary in nature. On one side there were documents (articles, medical reports, etc.) highlighting a set of facts that cast doubt upon the nature of Judge Loya’s death; and on the other side, there were other documents (the “discreet enquiry” report, contrary medical reports etc.) that sought to rebut or explain away these doubts.

My blogpost highlights the fact that my neighbour's cat may have been buggered to death by Rahul Gandhi. Should the Bench rule on this matter? Yes! It should waste not just most but all of its time.  

Now, the Supreme Court might have done the following: it could have taken a prima facie view of the petitioners’ case, and found that the petitioners had failed to make out a threshold case for an investigation, and dismissed the Petitions.

It could have fined the petitioners from bringing them a bag of dog shit.  

This approach would have involved the Court expressing no opinion on the cause of Judge Loya’s death, but simply noting that the evidence on record was insufficient for it to draw any conclusions.

Why is the Bench refusing to affirm that there is insufficient evidence to charge Rahul Gandhi with buggering my neighbour's cat to death? 


However, this is not what the Court did. Acting in its capacity as a constitutional court, and as the Supreme Court, it went far deeper, and into the quality of evidence before it, presented by both sides. It delivered a 114-page long judgment that went into great factual detail, drew almost-definitive conclusions about what had happened, effectively closed the case for all time, and did it all on the basis of its interpretation of the documents before it, untethered from the existing rules of evidence.

The Bench decides what is evidence. In this case, it came to the conclusion that ' Repeatedly, counsel for the petitioners and intervenors have attempted to inform the court that they have no personal agenda and that they have instituted these proceedings to protect judicial independence. An aura of good faith has been sought to be created by submitting that the true purpose of seeking an inquiry into the circumstances relating to the death of Judge Loya is to protect the district judiciary. But as the submissions have evolved, the petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions. Judicial review is a potent weapon to preserve the rule of law. However, here we have been confronted with a spate of scurrilous allegations. Absent any tittle of proof that they are conspirators in a murder the court must stand by the statements of the judicial officers. The judges of the district judiciary are vulnerable to wanton attacks on their independence. This court would be failing in its duty if it were not to stand by them.' 

The judgment, therefore, reads

like a cry of anguish that senior advocates have made a vituperative attack on the judiciary.  

'We must in this context record what we have heard during the course of the submissions. Mr Dave has urged that (i) he wants to cross-examine the judges; and (ii) he does not believe the judicial officers. Aspersions have been cast on the Administrative Committee of the Bombay High Court. This court has  been called upon to issue a notice of contempt to the judges on the Committee at the relevant time. Ms Jaising has joined the fray by requesting that this court to issue contempt notices to the Administrative Committee of the Bombay High Court. Junior counsel appearing with Mr Giri went to the extent of urging that the judicial officers whose statements were recorded during the discreet inquiry are suspect. Even the judges of this Bench hearing the present proceedings, have not been spared from this vituperative assault on the judiciary.  Mr Prashant Bhushan argued that because two of the judges constituting the present Bench (Justice AM Khanwilkar and Justice DY Chandrachud) were judges of the Bombay High Court, they may have known the judicial officers who have submitted statements or Justice Bhushan Gavai and Justice SB Shukre. If this were to be the test, it is rather ironical that the petitioners had instituted proceedings before the Bombay High Court each of whose judges were expected to be faced with the same situation. We informed Mr Bhushan that a decision as to whether a judge should hear a case is a matter of conscience for the judge. There is absolutely no ground or basis to recuse. Judges of the High Court hear intra court appeals against orders of their own colleagues. References are made to larger Benches when there are differences of view. Judges of the Supreme Court hear appeals arising from judgments rendered by judges of the High Courts in which they served, either as judges or on appointments as Chief Justices. Maintaining institutional civilities between or towards judges is distinct from the fiercely independent role of the judge as adjudicator. We emphatically clarify that on the well-settled parameters which hold the field, there is no reason for any member of the present Bench to recuse from the hearing. While it is simple for a judge faced with these kinds of wanton attacks to withdraw from a case, doing so would amount to an abdication of duty. There are higher values which guide our conduct. Though Mr Bhushan ultimately made it clear that he is not filing an application for recusal – and none has been filed – we have recorded what transpired to express our sense of anguish at the manner in which these proceedings have been conducted. Serious attacks have been made on the credibility of two judges of the Bombay High Court. The conduct of the petitioners and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt. However, on a dispassionate view of the matter, we have chosen not to initiate proceedings by way of criminal contempt if only not to give an impression that the litigants and the lawyers appearing for them have been subjected to an unequal battle with the authority of law. We rest in the hope that the Bar of the nation is resilient to withstand such attempts on the judiciary. The judiciary must continue to perform its duty even if it is not to be palatable to some. The strength of the judicial process lies not in the fear of a coercive law of contempt. The credibility of the judicial process is based on its moral authority. It is with that firm belief that we have not invoked the jurisdiction in contempt.'

less like a verdict on a plea for an investigation, and more like a criminal appeal that results in an acquittal, but without the benefit of a trial court judgment where the first trier of fact has returned detailed findings about the evidence, which the appellate court is then reviewing.

Bhatia is lying. The Bench says this entire case is fabricated to scandalise the court and undermine juridical independence. Those involved are guilty of criminal contempt. The Bench magnanimously refrains from applying this remedy. 

Alternatively, it reads like a trial court judgment that has been delivered without a trial.

No. The judgment reads as an anguish cry of protest against a blatant attempt to undermine the independence of the judiciary and to scandalise the court.  

This, I submit, is a very uncomfortable halfway-house for the Court to find itself in:

No. The Bench says this is criminal contempt of an egregious kind.  

it seems to be performing both the functions of a trial court,

Bhatia is batty. He thinks judges can be sued for libel for things said in open court. Now, he believes that if someone says 'I think a bunch of judges buggered my cat to death', then judges should be put in the dock and submitted to cross-examination. If the Supreme Court does not uphold batty Bhatia's view, then it is very evil. 

but without the statutory framework that is meant to govern the trial court in determining the truth, and of a constitutional court, but ruling on issues that a constitutional court is neither equipped nor meant to rule on.

A constitutional court can send a matter back to a trial court. There was no need in this case. Why?  The Bench found there was 'absolutely no merit in the writ petitions. There is no reason for the court to doubt the clear and consistent statements of the four judicial officers. The documentary material on the record indicates that the death of Judge Loya was due to natural causes. There is no ground for the court to hold that there was a reasonable suspicion about the cause or circumstances of death which would merit a further inquiry'. 

This was a nuisance suit brought in bad faith. No lower court needs to bother with this shite ever again. 

Indeed, the Court was hardly unaware of this. In paragraph 7, Justice Chandrachud noted that:

“In view of the nature of the issue which has been raised in the proceedings, we have permitted learned counsel appearing on behalf of the petitioners as well as the intervenors to rely upon such documentary material as would enable them to advance their submissions without being bound by technicalities of procedure.”

In other words, they could outline their theory of what happened in pursuance of an order that a further investigation be conducted with a view to bringing the matter to trial. Sadly, their theory was obvious shit. Judges don't kill judges.  

However, the fact that the Court was excusing the petitioners and the interveners to advance documentary material “without being bound by technicalities of procedure” does not mean that the Court was absolved from ensuring that its findings were delivered within the framework of a procedure that is relevant to the nature of those findings.

The Bench gave latitude to the petitioners but they presented a crock of mendacious shite. The Bench says this was an attempt to attack the independence of the judiciary and to scandalise the courts. It was criminal contempt. 

There is no procedural fault in this judgment.  

The most significant example of this occurred in the Court’s treatment of the “Discreet enquiry”,

i.e. one which was properly respectful of the dignity of the judges concerned 

conducted by the State of Maharashtra, which recorded the “say” of the four judicial officers. The judicial officers broadly supported the State’s view that there was no reason to believe that Judge Loya’s death was unnatural. The question before the Court, then, was what evidentiary weight (if any) to accord to this.

They decided it should be accepted at face value. Why? It was obviously true.  


To contrast what the Court did (which I discuss below), let’s imagine what would have happened had this been a normal criminal case pertaining to the death of Judge Loya.

There could be no such criminal case. Why? First, an Executive or Judicial Magistrate can order an independent inquiry, exhumation, or a detailed post-mortem examination under Section 196 of the BNSS if they suspect an offense took place, even if initial local impressions leaned toward natural causes. Since Hindus are cremated and these absurd charges surfaced some years after Loya's death, there could be no fucking investigation or trial. Allegations of bribery are a different matter. The Bench says 'Since the case also raises certain other matters (other than the death of Judge Loya), learned counsel requested this Court to remit the proceedings back to enable the petitioner to pursue before the High Court the reliefs sought on matters other than the death of Judge Loya. We find the request to be fair and proper. We accordingly direct that the present case shall be remitted back to the Nagpur Bench of the High Court of Judicature at Bombay. However, we clarify that the circumstances relating to the death of Judge Loya which have been dealt with by this Court in the judgment delivered.'

The Investigating Officer

There could have been none because no complaint had been made. A judge died of natural causes. Fellow judges took him to the hospital. There could be a case of medical negligence but it is recorded that the judge was dead on arrival at the cardiac hospital.  

might have taken the statements of the four judicial officers

Hilarious! Investigating officers are deferential to judges. A 'discrete' inquiry can be made- indeed,this was done.  

as part of her initial investigation, and submitted them to the Magistrate along with the rest of the material. In the unlikely event that the Magistrate would have decided not to take cognisance of the case on the basis of these statements, and closed proceedings,

Magistrates are deferential to judges. They close the proceedings on their say so.  

it would still have been open to the kin of the accused to launch a private prosecution (they would also have had remedies if the police itself had sought a closure).

They would have failed immediately. Batty Bhatia doesn't seem to understand that absurd allegations against Judges are dismissed by both the lower and the higher judiciary. The problem was that 4 Supreme Court judges- Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph- held a press conference because they believed 'democracy was in danger'. The Wire reported. 'On being asked repeatedly, the Justice Gogoi told journalists that the press conference was prompted by issues surrounding the death of special CBI Judge B.H. Loya'. This was misleading. The issue was allocating the case  to Justice Arun Mishra who was tenth in order of seniority. Perhaps they were not aware that the case was dog-shit. Mishra recused himself and the CJI along with two senior Judges, disposed of the case.

This opportunity, however, has now been denied to them by the Supreme Court which stated that all issues are now closed.

Batty Bhatia doesn't think any case shoud be closed.  

However, it is unlikely that the Magistrate would have closed the case, because the threshold for taking cognisance is a low one,

It is very high. There has to be one or more of the following

Application of Judicial Mind. Cognizance occurs the moment a magistrate looks at the facts and decides to initiate judicial proceedings against the offence, rather than ordering a police investigation or issuing a search warrant. 
This in turn depends on receiving a complaint or police report or gaining knowledge of the offence through a third party or personal knowledge. None of these conditions were met. The family did not complain. 
Prima Facie Case. The threshold is met if the allegations in the complaint or police report, assuming they are true, constitute a recognized offence. 
What offence were the Judges accused off? Did anyone say 'they bludgeoned or poisoned their colleague?' 
Focus on the Offence, Not the Offender.
There is no offence if there is evidence the death was natural. 

The Loya case, in essence, is that Amit Shah is a villain. He tried to bribe Loya. He failed. Then he got him killed. The bizarre aspect to this is that Judges are assigned the role of bag-men and hit-men. That is scandalous. It is criminal contempt. 
and exculpatory evidence is normally left to be brought in at the stage of trial.

Nonesense! Such evidence can be submitted before the police final report or, after it, by 'protest petition'. Once a charge sheet is filed, the accused can apply to be discharged before the trial begins under Section 262 of the BNSS (for Magistrate warrant cases) or Section 250 of the BNSS (for Sessions Court cases).

Batty Bhatia may be thinking of the "Police Record" Restriction. Under Supreme Court precedent, a trial court deciding a discharge application can normally only examine the charge sheet and documents submitted by the police. The accused generally cannot introduce their own private defence evidence (such as a personal alibi) at this stage. Here, the accused must approach the High Court with the exculpatory evidence to get the charges quashed. This happens if the evidence is of 'sterling quality'. However, the prosecutor may withdraw the case with the consent of the magistrate and the accused.

All this is irrelevant in the Loya case which was prima facie dog-shit.  

This leads to the second situation: if, on the basis of the prima facie material produced by the Prosecution, a charge had been framed, then the four judicial officers would have been witnesses for the defence,

they would have been the accused. No one else is named in connection with Loya's death.  

and their evidence would have come in at the stage of trial (after the Prosecution had completed its evidence). There would have been no “discreet enquiry” and no “say”: rather, the four judicial officers would have been sworn in, their evidence taken, and then they would have been cross-examined by the Prosecution.

There was no accused so there could be no trial or defence witnesses. Batty Bhatia doesn't seem to understand that, at the trial stage, there must be a specific, identified, accused. 

These are not simply “technicalities of procedure.”

There is no offence if there is no offender. You can't conduct a trial against nobody. This is not a technicality.  

They go to the heart of the adverserial legal system: being sworn in is important, because it exposes a witness to a charge of perjury if she is later found to have lied.

You can't swear in a witness if there is no trial. There can be no trial if there is no specific, identified, accused.  

And cross-examination is absolutely critical, because it is a fundamental postulate of the adverserial system that the truth – or an approximation of it – cannot be arrived at in the absence of each party’s case being tested by its opponent.

Where is the accused? He is the opponent of the prosecution. If he is not identified, there can be no trial. Incidentally under the old rules (which would govern this case- if it really were a case) the Court can't  cannot convict a sole absent accused. Instead, under Section 299 of the CrPC (now Section 335 BNSS), the court can only record witness statements in the absconder's absence so the evidence is preserved for when they are eventually caught.

For this reason, courts across the common law world have held that even the word “evidence” has little meaning until it is put through the rigours of a cross-examination.

Which is why the Bench found there was no evidence whatsoever to back up the petitioner's suit.  

It is important to note that even though it is a constitutional court, where disputed factual questions are ordinarily not meant to be contested, the Supreme Court is vested with the power of conducting a cross-examination if, in its discretion, it believes that it is appropriate.

It wasn't. There was no fucking case to answer. The thing was dog-shit.  

And indeed, precisely this request was made by the counsel for the Petitioners, who asked that he be allowed to cross-examine the four judicial officers (paragraph 15). The Court record this submission, and then rejected it, noting that:

None of the persons whose cross-examination has been sought is a witness in the present proceedings. The court is essentially required to consider to whether a case has been made out on behalf of the petitioners (supported by the intervenors) for directing an inquiry into the circumstances leading to the death of Judge Loya.

It hadn't. There was no evidence. It is no good saying 'had there been a trial without an identified accused (which is illegal) then these judges would have been witnesses. On the basis of this non-existent case, may we cross-question them as though they actually had been witnesses?'

The answer is 'no! Don't be silly.'  

As part of this process, the court has to decide as to whether the inquiry which has been conducted by the state is vitiated

a discrete or polite investigation is not vitiated for that reason. There has to be evidence that its findings were perverse.  

and if circumstances have been brought to the notice of the court which cast a reasonable suspicion about the events leading upto the death of Judge Loya. 

Where is the video evidence of the Judges beating and sodomizing Loya? It doesn't exist. No doubt, Rahul Gandhi may one day challenge the Bench to a debate saying 'I have all the evidence on my phone. Modi knows this because he taps my phone. That is why he is afraid to debate me. Still, at least the Bench should do so because I'm not a stupid cunt at all.'  

This, however, is circular: the whole point of the Petitioners was that the question of whether the “inquiry” was vitiated or not could not be decided without actually submitting the “evidence” of the judicial officers who participated in it to the rigours of cross-examination.

The Bench decided otherwise. Why? In Indian law, an inquiry is vitiated either by curable or incurable irregularities. With discrete inquiries,  Lalita Kumari v. Govt. of U.P. , says that police cannot use an indefinite, unofficial "discreet inquiry" to delay registering an FIR when information clearly discloses a serious cognizable offence. Since no such information existed, this was not relevant in the Loya case. 

Instead, what the Court did hold on the question of the “discreet inquiry” and the “say”, was the following: 

Each of the judges has spoken in detail of the facts and events which were within their personal knowledge. The statements contain matters of detail which would be known to those who were present with Judge Loya. They have a ring of truth. They had nothing to conceal nor an axe to grind. Three of the statements are dated 24 November 2017 while the fourth submitted by Judge Rathi is dated 23 November 2017 and contains an endorsement of receipt by the Commissioner on 24 November 2017. The fact that two of the judges were respectively at Pune and Baramati is absolutely no ground to cast doubt. The statements were submitted with dispatch. Reading them it is clear that they have been submitted without pre-meditation. The four judicial officers acted responsibly. There was no reason for them either to hasten or to cause a delay in submitting their versions of what they knew. Each of the four judges has acted with a sense of duty. This is how they would be expected to conduct themselves, in answering to a call of duty. (Paragraph 46)

So, the Bench felt the discrete enquiry had uncovered the truth. Was it the truth? Yes. Judges don't kill each other.  

The whole point, however, is that the adverserial legal system is founded on the postulate that whether a statement has “a ring of truth” is to be determined by putting its maker on oath and subjecting her to cross-examination.

Where is the adversary? Without a specific, identified, accused, there can be no criminal case and thus no cross-examination.  

People often have things to conceal, and people are often motivated by greed, or fear, or a combination of both. Judges are not somehow exempted from being human in this regard (recall how it was noted, in the Constituent Assembly, that “judges have not got two horns; they are men like us”).

Batty Bhatia may habitually sodomise and kill his colleagues. Fortunately, judges are not men like him. 

Still, I do feel that the Indian Supreme Court in not cross-examing him, under oath, regarding his role in Rahul Gandhi's buggering to death my neighbour's cat.

The issue, of course, is not whether the judicial officers in this case had anything to conceal, but that nobody can come to a definitive conclusion about that without going through the processes that the legal system expressly envisages for exactly this purpose.

In which case nobody can come to a definitive conclusion regarding whether batty Bhatia held down my neighbour's cat while Rahul Gandhi buggered to death. Both must go through the legal system and give sworn testimony, subject to cross-examination, regarding the death of any and every sentient creature in the universe. As a Constitutional Scholar, I have frequently voiced my disappointment in Dr. Ambedkar for refusing to abolish death. If Rahul, with batty Bhatia as his side kick, is causing death all over the universe by means of a distasteful and non-consenual type of sodomy, then the Supreme Court should spend all its time dealing with petitions in this connection.  

Consequently, the Court could have done one of two things: disregarded the statements altogether while considering the question of whether there was an prima facie evidence to warrant an investigation

their statements were prima facie evidence that no investigation was warranted. Why does Batty think Courts should disregard evidence?

– or, if it was not going to do so, then required them to be sworn in and allow a cross-examination.

On what basis? Who was on trial? Nobody.  No trial means no sworn testimony and no cross examination. 

Instead, the Court passed a sweeping conclusion on the veracity of their statements purely by virtue of their position.

Because the petitioner and others were acting malafide with the intention to scandalise the Court. I believe a Review Petiton was submitted and dismissed. No Curative Petition was submitted and there the matter ended. 

In fact, the judgment, on this point, is particularly unsustainable, because it takes judges and invests them with superhuman qualities by virtue of their office, in a context in which that office has no relevance to the issues at stake.

If does, if- as the Bench said- the intention was to scandalise the court and undermine the independence of the Judidiary.  

This is not a case where, for example, a judgment is being attacked on the basis that its author was motivated by financial considerations, and where it makes sense to say that our constitutional system requires us to presume judicial good faith (in the absence of clear, contrary evidence). Rather, this was a case where judicial officers effectively happened to be giving statements as “witnesses”, in the common sense of the word.

In which case batty Bhatia should give evidence every time somebody's cat dies. After all, he may have helped Rahul rape it to death.  

Instances abound in the judgment where the Court went into detailed factual appreciation of conflicting evidence, and came to definitive conclusions without making use of the criminal legal system’s tools to address and resolve such conflicts.

Because the criminal legal system can only operate if there is a specific, identified, accused. My own case against Rahul could not proceed because he was in Thailand at the time that my neighbour's pussy died. However, if a trial of an unidentified person could proceed, then I could cross-examine Rahul & Batty to my heart's content- at least, in a world where Batty's rules of jurisprudence prevail.  

For the purposes of this post, one more example will suffice: Judge Loya’s father and sister alleged that the then-Chief Justice of the Bombay High Court, Mohit Shah, had offered him a substantial bribe to return a favourable verdict.

Did they sign affidavits to this effect? No. This is hearsay. 

The State of Maharashtra placed on record signed written statements (dated November 27, 2017) from Harkishan Loya, Anuradha Biyani (the sister), and Judge Loya's son, Anuj Loya, addressed to the Commissioner of the State Intelligence Department (SID) during its discreet inquiry. Those unsworn statements stated that the family had no suspicions or complaints regarding Judge Loya's death.

The Court rejected this by noting, inter alia, that it was “hearsay” (paragraph 60). But this is a classic example of having your Evidence Act and eating it too: the exclusion of hearsay evidence is a technical rule of evidence (subject to a series of exceptions that may even have applied in this case).

No. There was audio and video evidence that they had voiced serious allegations to the Caravan reporter. But they may have been paid to do so. To admit this evidence they would have had to affirm their statements. They did not do so.  

The Court cannot take a janus-faced approach to the Evidence Act – discarding it in order to accord the highest probative value to a judicial officer’s “say” in a “discreet inquiry”, but following it by the book to discard statements made by the relatives of the deceased.

The Judges gained nothing from their statements. Family members may have been paid to say one thing to Caravan but refuse to say the same thing in court under oath.  

What this results in, at the end of the day, is three judges’ assessment of a set of documents, untethered and unbound by any rules that determine, or even guide, how that assessment ought to be made: the very antithesis of having a rule of law instead of a rule of men.

The result was a 3 judge bench saying the petition was malafide. This was an attempt to undermine the rule of law by scandalising the court. The only crime here is criminal contempt- or, in Batty's case, incurable stupidity.  

The broader point is this: for the last three decades, and predominantly in the Supreme Court, the rules and procedures that govern the appreciation of evidence have come to be viewed with skepticism, as though they are impediments to arriving at the truth, rather than facilitators of it.

It would be fair to say that the Bench creates problems for itself in its fruitless pursuit of 'complete justice' under Article 142(1) 

The primary driver of this approach has been public interest litigation, where the Court has increasingly relied upon affidavits to draw sweeping factual conclusions, brushing aside evidentiary concerns by noting that these proceedings are not really adverserial.

If the Bench did very much less, it would achieve very much more.  

What this has resulted in, in the year 2018, is a Supreme Court of Everything: of the Constitution, of legal issues, of factual disputes, of mixed questions of law and fact. It has become the Supreme Magistrate, the Supreme Investigating Officer, and the Supreme Additional Sessions Judge, the Court of First and Last Instance. In such a situation,

people, like batty Bhatia, get angry when it won't do whatever stupid shit they want it to do.  

there is an urgent need that the Court be even more careful of the evidentiary and procedural standards it applies, because when the same body acts as the first and the last tribunal, every error is compounded to a grievous degree.

Sadly the Bench could not properly punish Bhushan for contempt. They have made a rod for their own back and can injure none but their own reputations. 

The Loya Judgment was an opportunity for the Court to begin its journey down that road.

No. A 3 judge bench can't do much. You need a 15 judge bench to overrule Kesavananda & Bommai etc.

Unfortunately, it now remains a road not taken.

The road not taken was that of permitting criminal trials without an accused.  

Mushtaq Khan on Gunnar Myrdal

 The always excellent M.H Khan writes of Gunnar Myrdal's 'soft state' thesis as follows-

One of Myrdal’s most influential observations was that states in South Asia were ‘soft’ and could not enforce social discipline.

Indira Gandhi's Emergency showed that the Indian State was well hard. Ted Heath's Emergency in the UK failed miserably. Indira didn't just crush all dissent over-night, she showed she could do forcible sterilization. 

Unlike East Asia- where there was family registration and, in the case of China, an internal passport system, as well as a history of collective punishment which militated for filial piety and the appearance of 'social discipline'- South Asia relied more on local authorities and a type of communal self-policing. Thus, the foundation of the criminal justice system is the punchnama- i.e. testimony of 5 respectable men of the village or neighbourhood. The magistrate was not the inquisitor uncovering facts. The facts were presented to him and experts advised on appropriate sentencing. 

Caste was a sort of Trade Unionism which established a degree of countervailing power. Society had a bias towards harmonious functioning and accommodation. East Asia could see big Revolutions. During the Meiji Restoration, Buddhist monks and temples (which the Shogun had used to run the Household Registration system) were attacked. China, more dramatically, had a history of peasant uprisings leading to a former peasant becoming Emperor ( Han & Ming Dynasties). Mao, of course, was the son of a prosperous peasant. Interestingly, it was the kulaks who fed his forces before he came to power. 

Political leaders tolerated social indiscipline and inefficiency on the grounds that this was

how the country had always been. Also they were pretty undisciplined and inefficient themselves.  

part of ‘democratic planning’ while engaging in corruption themselves.

Political leaders were either senile or extremely stupid and lazy. The system worked well enough for them. They didn't give a fuck about anybody else. It is said 'the best of monopoly profits is a quiet life'. In a stagnant economy, few have very much to do. Even the employed are under unemployed.  

Myrdal argued that this regressive collective behaviour was the product of attitudes, cultures, and institutions.

Socialist policies were preventing law abiding people from setting up industries and transferring rural girls into giant factory dormitories. Without industrialisation, the habitus of the people was difficult to change. The legal hurdles to sacking workers or closing down loss-making units meant that the work culture in most factories tended to deteriorate. 

Myrdal, fool that he was, didn't get that Socialism was the problem in India. He believed more Socialism was the solution! 

He was describing something important, but it was an incomplete observation. The soft states were only ‘soft’ in some areas. They were very hard in others, for instance in repressing communists or secessionists.

not to mention forcibly sterilizing people 

The weak implementation of some institutions and policies is more likely to have been due to the interests of powerful organizations in specific countries and sectors rather than a general feature of their cultures and attitudes.

Sadly, commercial organisations weren't powerful at all. They couldn't even sack workers who refused to do any work.  

The ‘political settlement’ describes the distribution of power across different types of organizations.

It is irrelevant. If the courts are useless, you hire goons to get your work done. At first politicians used criminals. Then criminals started getting elected on their own.  

The distribution of organizational power can vary greatly across countries and sectors, and over time, and can help to explain significant differences in institutional outcomes and behavioural patterns.

Only incentives matter. If they are strong enough, there is a Coasian solution which, however, may be illegal. The problem in India was that collective action problems weren't being tackled such that external economies became available.  However if productivity was high enough (e.g in IT) , there was a workaround. Low productivity remains a problem. Even with very low wages, per unit labour cost is too high. This leads to a reswitching paradox- expensive capital was and is substituted for cheap labour. 

At one time, we might have blamed militant unions but it is now clear that infrastructure is the bigger bottleneck. 

The relationship between institutions and political settlements can be explored through the lens of industrial policy institutions, which played an important role in many Asian countries.

Sadly, Nehru- to the great satisfaction of the Myrdals- chose a particularly stupid type of Socialist 'perspective' planning. I suppose, his intention was to concentrate economic power in the hands of the Planning Commission- which the PM controlled- and to reduce the independence of the big industrial houses which had financed the Congress. At a later point, after Indira nationalised most banks, the industrialist was playing with 'house money'- i.e. money borrowed from the Govt. banks. The smart ones used 'pyramiding' to retain control rights without much of their own 'skin in the game'. Meanwhile they offshored their assets in various ways. Absurdly, a lot of big Indian contracts are under foreign jurisdiction- i.e. the notoriously slow Indian judiciary is disntermediated.  

Success with industrialization depended

on getting rural girls into giant factory dormitories 

not just on the country’s initial conditions, but also on the implementation of transformative industrial policy institutions.

But you had to start with labout intensive light manufacturing. 

Successful industrial policy in Taiwan and South Korea in the 1950s and 1960s involved the allocation of resources to new firms and sectors as conditional policy rents.

Both were dictatorships which faced a military threat. They feared the withdrawal of US support and thus sought to mobilize what resources they had (mainly cheap labour) to go in for export led growth. The big difference between Japan and India in the Fifties & Sixties, is that the Japanese MIT used scarce foreign exchange to invest in areas where exports could take off- i.e. the forex position would improve. India went in the other direction.  

The aim was to accelerate technology adoption and learning-by-doing to raise productivity and achieve competitiveness in new sectors.

This was done by investing in what would give the biggest return. The middle class was pushed into STEM subjects. Lawyers were few and far between. In South Korea, in 1980, there were less than a thousand lawyers for a population. In Calcutta, the number of new lawyers registering in 1980 was over a thousand.  

The critical condition for success, as developmental state theorists later pointed out, was that industrial policy agencies could effectively discipline the recipients of policy rents.

But there was a big incentive to embrace that discipline. In India everybody new the regulations were a self-contradictory bundle of anachronistic or+ virtue signalling shite. To comply with one rule you had to break two others.  

This capability allowed mistakes to be corrected and ensured that productivity growth was rapid.

South Korea & Taiwan faced an existential threat. In India you just needed to be slightly better than your adversary in the electons.  

In China in the 1980s, the industrial policy was different but the enforcement of conditions ensuring productivity growth was again effective, achieving dramatic outcomes.

Chairman Deng said 'to get rich is glorious!' However, it was the agricultural sector which first began growing rapidly. It is said that after the Tianamen protests, the Government focussed on the urban population. People from the Chinese diaspora played a great role in China's rapid rise. India liberalised a little later but, Edwin Lim (a World Bank official who came to India after a stint in China) said that the 'activists' and 'public intellectuals' gained more by preventing development than the Government's officials and advisors.  

At the other end of the spectrum were countries in South Asia in the 1960s where the beneficiaries of industrial policy rents were much more difficult to discipline.

No. They kept losing incentives or rather faced growing disincentives. At that time, industrial unrest was a big factor. Militant Communists drove a lot of industry out of West Bengal in the late Sixties and Seventies. A trade unionist, Datta Samant, destroyed the textile industry in Mumbai in the Eighties. However, where the state government beat the shit out of troublemakers in the factories- e.g. in Haryana- industries could flourish. Gujarat was a special case. Under Modi it had balanced growth of industry and agriculture without any coercive means being resorted to. On the other hand, Muslim gangsters were shot out of hand. Sonioji weeks every time she recalls this. 

Powerfully connected business houses, and groups linked to them, captured policy rents and could not be disciplined.

The Government wasn't  saying 'export more!'.  It was saying 'why have you produced more than your quota? Give me one good reason why we should not send you to jail.'

The fact is, industrialists want to produce more & get economies of scope & scale. They want to climb the value chain. What they don't want to do is go to jail because they produced more than their license permitted.

Not surprisingly, these countries achieved less significant industrial outcomes.

They faced no existential threat.  

Southeast Asian countries were somewhere in between and achieved moderate success.

More particularly if their Chinese communities were permitted to grow richer. Myanmar, sadly, pursued even crazier policies than India and ended up  

However, the 1980s saw the beginning of a different type of industrialization in South Asia, led by sectors like automobiles and pharmaceuticals in India and garments and textiles in Bangladesh.

Bangladesh, under Ershad, started doing privatization. It rose because it got more and more rural girls into factories. Thus it achieved demographic transition and overtook Pakistan in terms of per capita income. 

Institutions and policies successfully supported capability development in these sectors because policy rents were now delivered in ways that could not be unproductively captured, even in these political settlements.

It isn't rent capture that is the problem. It is what is done with the rent. If it is re-invested, then the Nation prospers. Don't forget, economic rent accrues where there is non-convexity (economies of scale) and super-modularity (complementary goods- e.g. increased demand for services when manufacturing wages and profits rise)  

Developmental state institutions worked in North East Asia and China

only if they did sensible things.  

not because these countries already had market-supporting behavioural norms, nor  because they were less corrupt or otherwise better at following market rules.

It is said that China is run by engineers not lawyers. Engineers are interested in efficiency and getting more output with less resources. Lawyers are interested in expanding the rule set even if this results in incentive incompatibility.  

If the appropriate rights, norms, and behaviour already existed, social transformations would not be required (Khan 2004, 2007).

Social transformation happens through mimetic effects regardless of norms and behaviours. That's why, despite being a fat fuck, I wear skinny jeans rather than a dhoti. 

Transformational policies are required precisely because pre-existing rights and institutions have to change and new capabilities developed.

Policies don't matter. Incentives do. If policies change the incentive matrix then there is likely to be an 'excess burden'. However, if profits are reinvested & tax revenue funds infrastructure expansion, the dynamic benefit outweighs the allocative cost. The other point is that disintermediation can occur leaving policy ineffective. What is crucial is expectations.  

They inevitably disrupt pre-existing rights and require the creation of many rents as important market failures are targeted.

Disintermediation is a Coasian solution. That's why property rights or Government policy may not have changed even though the whole Society has been transformed.  

Transformational institutions are successful when they are effective in changing rights and behaviour to achieve more productive societies.

Jail is a very transformational institution. If there is a high probability that you will soon be sent there if you break the law, you change your life-style. This can raise productivity.  

For this to happen the enforcement of these institutions has to be aligned with the interests of the powerful

You can beat, kill and incarcerate the powerful. This makes them as weak as a kitten. Enforcement is easy if the mechanism is 'incentive compatible'. Indeed, 'self-enforcement' may occur. 

Myrdal posed a question that continues to motivate institutional analysis: why do people not respond to incentives in the same way everywhere (Myrdal 1968: 16–24)?

Because they have different habitus and mimetic targets. This means the psychic reward or punishment is different hence the incentive matrix is different.  

Myrdal rightly criticized economists who assume that responses to economic incentives will be the same everywhere. This was not the case, he argued, because behavioural norms may prevent individuals from responding rationally to economic incentives.

But, at the margin, it will happen and then Tardean mimetics takes over. People want to emulate those like themselves who have gotten rich. We may say, Taiwan and South Korea took Japan as their mimetic target. North Korea looked to China and the Soviet Union.  

He called these patterns of behaviour ‘institutions’, and in India, Myrdal’s main case study, the regressive institutions he identified included the caste system,

Japa had untouchability.  

the taboo on cow slaughter,

which can be got around. Anyway, people can substitute buffalos for cows.  

dysfunctional pre-capitalist structures of land rights,

England has this when its industrial revolution took off.  

and the management of firms based on caste, family, and ethnic allegiances.

Family run firms can run into problems in the third or fourth generation. But, they can be very effective in the first and second generation. Caste can be economically useful. Look at the Patels of Gujarat or the Nadars of Tamil Nadu. 

What Myrdal describes as institutions include what we would today call formal institutions like property rights or laws against cow slaughter, as well as informal institutions like caste, that are either self-enforced or enforced by informal extra-legal processes (North 1990). Myrdal’s argument was that formal and informal institutions reinforce each other and are therefore difficult to change.

They change at the margin and those who prosper most set off a run-away process of Tardean emulation.  

Their persistence can prevent the emergence of the behavioural patterns necessary for a modern market economy, including efficiency, diligence, flexibility, enterprise, and even honesty.

Myrdal knew that Nehru's India was pursuing anti-market Socialist policies. There is no point being diligent if this doesn't make you better off.  

He concluded that regressive behavioural regularities needed to change, but this was only likely if compulsion was used to change these attitudes.

Like his son said, the guy was a fascist. He and his wife supported forcible sterilization for eugenic reasons in Sweden.  

But the ‘soft’ South Asian states were unable or unwilling to impose any social discipline on citizens (Myrdal 1968: 60–3).

They weren't utterly heartless. If you have lots of semi starved people sleeping on pavements, the urban masses will be thankful for what little they have.  

His response was to propose a big push to change institutions and attitudes

i.e. have a Revolution in which millions were slaughtered followed by a man-made famine to cow the rural masses.  

because ‘[i]t is often not more difficult, but easier, to cause a big change rapidly than a small change gradually’ (Myrdal 1968: 115).

The problem with a Revolution is that sooner or later a General takes over unless, as in the Soviet Union, it is a bureaucrat who can create vast Gulags.  

But he did not make clear where he thought such a push would come from.

The Army. Some bunch of Commie junior officers kill their superiors and capture the Radio Station & the President's mansion.  

The parallels with the later institutional economics of North and his followers are obvious. The argument begins with formal institutions and informal behavioural norms. In Asia these were often regressive, with roots going back to pre-colonial and colonial periods, which Myrdal loosely describes as ‘feudal’.

Europe was more genuinely feudal. Yet it industrialised. At one time, it was thought that universal education was the key. Sadly, in India, that would just mean virtually universal unemployability. 

These pre-existing institutions include dysfunctional property rights over land,

The problem was fragmentation of land holdings. Myrdal rightly crticised Bhoodan but seems not to have been aware that Colonial laws actually made it easy for the Executive to redistribute land. The problem was that politicians had an incentive to tie the beneficiaries of land reform to the land so as to preserve a vote-bank.  

hierarchical caste systems, or other social attitudes that were inimical to the effective operation of a capitalist market economy.

The 'Marginal Revolution' emphasises that what happens at the margin determines outcomes. If the smartest people are going into industry, industry is likely to grow. If they are going into Development Econ the country is fucked.  

Individuals and firms could not respond flexibly to price signals or market opportunities in such a context.

Because of Expectations. But if there are impediments to reallocating resources, there is a good chance that this is regret minimizing.  

To deal with the economic underperformance that followed, states found it necessary to operate a raft of discretionary top-down controls like licensing economic activities, providing subsidies, protecting markets, and so on.

Not in India. The Economy was doing quite well when Nehru decided to go in for some particularly stupid sort of Socialism. I think 'perspective planning' was a plan to eventually change how people saw things. In other words, it wasn't Economic but Psychological or Idealogical. Nehru, in his autobiography, said he wanted to Brahminise India which the Brits, a nation of shopkeepers, had turned into a bania nation. Perhaps 'perspective planning' would mean Indians would come to adopt a Brahminical perspective such that the things of this world matter less and less. 

The result was the resolution of some problems but the creation of new inefficiencies, since these interventions too could not be properly policed or enforced.

They could but this would just mean bigger losses.  

We would today describe this as rent creation and corruption

The purpose was to harass and cow down the industrialists and business houses.

Anticipating subsequent debates over rents, rent-seeking, and governance, Myrdal argued that these interventions created ‘extraordinarily high profits’ (rents) for privileged companies in the private sector (Myrdal 1968: 926).

This was common knowledge. Sadly, because economies of scope and scale were not attained and the domestic market was stagnant, these 'privileged' companies stagnated in the next decade. There had always been a question about the quality of Indian entrepreneurship. It appeared to decline over the course of the Sixties and Seventies. Liberalisation caused several big business houses to disappear- though family feuds often played a part. 

Given the low social discipline, the interventions induced further rule violations and regressive behaviour, completing the loop in Figure 13.1 (Myrdal 1968: 901–35).

How does 'social discipline' feature? The fact is enforcement was weak and the 1947 FERA act had plnety of loopholes. In the Seventies enforcement was beefed up but 'hawala' networks became more entrenched.  

Myrdal’s analysis anticipated modern institutional analysis whose logical structure is quite similar. It also anticipated the literature on how corrections to market failures can lead to government failures (Bhagwati 1982, 1983; Krueger 1990).

The difference was that Myrdal thought India should be even more Socialist. Why not kill kulaks and have a Cultural Revolution?  

Myrdal sometimes argues that regressive institutions persisted because powerful interests benefitted from them,

Whereas the truth is insitutions were shitty because incentives to make them less shitty were lacking. It may be, in Sweden that industrialists have a lot of power relative to the Prime Minister. Such was not the case in Nehru or Indira's India.  

but at other times he argues that they reflected the values and cultures of these societies.

'Institutions' is code for Race. You can't say 'darkies are shit'. You can say 'Institutions are shit in country x. I have no idea whether the people of that country are darkies. The truth is, I don't see colour. Anyway, some of my best friends have sun-beds and thus are quite tanned.'   

In the early part of his work, it appears that regressive institutions are protected by powerful interests. But later Myrdal argues that gradual changes were possible in Europe because reforms were aligned with the values of Western civilization,

coz they were White 

while in South Asia,

which is full of darkies 

regressive social behaviour, stratification, and attitudes were sanctioned by old cultures and popular religion, and so gradual reform was more likely to be overturned (Myrdal 1968: 2114–15).

Some countries took the Soviet Union or Communist China as their mimetic target. Those who copied Japan had a different trajectory. 

The distinction between the two positions is important for Myrdal’s justification of radical change.

Scrap stupid Socialist policies and virtue signalling or paternalistic laws. Let productivity rise and use tax revenue for infrastructure investment. If a fucking Swedish meatball turns up saying he is a Development Economist, shit on him and chase him away.  

The interests of the powerful and the evolution of cultures can clearly interact.

Power is about displacing rivals. If you try to change 'culture' you might yourself be displaced. On the other hand, Tardean mimetics can work at the level of the State. But cultural adoption of this type may be only skin deep. Moreover, it may be overturned. A hundred years ago, a King of Afghanistan tried to get his people to adopt Western dress and sport moustaches rather than beards. Now, the Taliban are in power. Turbans and beards are de rigueur.

Powerful groups can be expected to invest in cultures that support their interests, but these can also become widely shared and provide affirmation and identity to many other groups.

Members of a powerful group may have very different cultural or religious allegiances. Speaking generally, culture and religion are public goods- i.e. 'non rival' & (to a lesser extent) 'non excludable'. Power or its lack does not matter.  

A wide range of groups can then use cultural and identity symbols in their own mobilizations. It may therefore appear that culture has an independent existence because it does not mechanically reflect the interests of particular groups. Nevertheless, culture persists because a variety of groups invest in its reproduction

by having sex and reproducing 

and it is therefore important to assess the dominant direction of causality over time.

It really isn't. I suppose what Khan is getting at is that South Asian countries have become more religious over the last few decades. But that is because Religion is a service industry with high Income elasticity of Demand. It isn't the case that 'powerful' people are feeding the opium of Religion to the masses.  

Myrdal’s earlier argument that regressive institutions and attitudes are protected by configurations of interests is more in line with my own thinking....

Why can't powerful people in South Asia promote Lesbianism instead of religion?  

If on the other hand, cultures and norms persist entirely independently because of mental models, we are in a thicker soup. Much later, Douglass North came to a similar impasse when he was trying to explain the persistence of dysfunctional institutions. North resisted explanations based on the distribution of power, and so he had to fall back on mental models to explain institutional stagnation by a process of exclusion (North 1995). The problem is that this can easily descend into a genetic explanation

i.e. 'darkies are shit'.  

because we then have to explain why some population groups fail to update or reject their dysfunctional mental models in the light of evidence.

There is little point updating a mental model if you live in a shithole which might get shittier yet. 

Fortunately, North abandoned this line of argument before it drove him in that direction. This is not to say that values, cultures, or religions never have independent effects on the evolution of institutions and organizations. Cultures and norms can influence how different groups across society identify themselves and the narratives they use to mobilize their supporters in conflicts with other groups. As a result, the evolution of organizational power and institutions can be affected by culture and history. Myrdal’s warnings about the regressive role of culture and religion can hardly be ignored in the context of the backward slide towards populism and identity politics in large parts of contemporary South Asia and beyond.

Even Myrdal would not have recommended trying to eradicate Islam. The Khalqis, in Afghanistan, tried. They failed miserably. 

. If we recognize the possibility of value-enhancing rents,

taxes are such a rent. Higher taxes could lead to higher income such that the burden of the tax is constant or falls. 'Tudor monopolies' may be a good thing is profits are invested wisely.  

rent-seeking and corruption can be associated with very different development outcomes (Khan 2000a, 2000b, 2006).

This is also the case where there are no rents.  

Similarly, the mainstream work on property rights and formal institutions ignored the fact that capitalist development requires the destruction of many pre-existing rights and institutions.

Not as much as Socialism. Speaking generally, the law is flexible enough to create workarounds for feudal laws. Ultimately, if the remedy is too costly, the underlying right will de facto disappear.  

Developing societies are unlikely to have well-enforced formal institutions

the may have inherited very good ones from their Colonial masters.  

when their pre-existing rights are going through huge disruptions. Using the institutions and governance structures of advanced countries as the benchmark for developing countries is therefore deeply problematic not only in Myrdal, but also in later authors like Acemoglu and Robinson (Acemoglu et al. 2001; Khan 2012).

Not in the case of Singapore. Brexit was about creating Singapore-on-Thames. Sadly, it isn't working. 

 Acemoglu and Robinson’s (2000, 2012) analysis of power, and their argument that inclusive political institutions empower market-supporting groups,

Indian democracy was inclusive. The son of a peasant or a chai-wallah could rise all the way to the top.  

is also based on an inappropriate generalization. Advanced countries are advanced because they have many productive organizations that can benefit from market institutions.

They can benefit from sophisticated financial markets, more particularly if their shares are trading at a premium.  

Market-restricting monopolies benefit small groups but hurt the majority.

Unless there are economies of scope and scale.  

Inclusive political institutions in such a context can plausibly empower the productive majority to resist monopolists.

Because Joe Lunch-pail is an expert on Competition policy- right?  

The problem of power is more complex in developing countries where the majority may not necessarily support market institutions because they do not yet have the productive capabilities to benefit from them.

The majority don't think or talk like Economists. They may vote for a guy who says he will lower taxes and increase welfare spending even if this is bound to cause infation.  

Instead, large groups can be mobilized with populist or identity politics to demand value-reducing rents or to block the productive restructuring of property rights.

In India, you can always rent a big mob to demand anything at all. However, it is the 'activists' (andalonjivis) who pose the biggest problem.  

In these contexts, inclusive political institutions do not necessarily empower market-supporting groups.

But a Thatcher or a Reagan can emerge.  

This is not an argument against inclusive politics, because restricting rent-seeking opportunities in these contexts may sometimes trigger violence and more regressive results. The challenge is to devise incremental institutional changes that can nudge developing societies towards better evolutionary paths.

New technology can be very helpful. It allows a developing country to 'leapfrog' over a historically very expensive type of infrastructure. 

Marxist historians of capitalist transitions in Europe have also identified the importance of distributions of power for understanding the emergence and effectiveness of institutions (Brenner 1976, 1985; Wood 2002).

Sadly, they understand shit. 

The puzzle they addressed was that the first transition to capitalism was in England rather than in more commercialized or more culturally sophisticated parts of Europe.

Marx thought Holland was ahead. Reclamation of land from the sea led to non-feudal land title in the 12th and 13th century. However, de jure, England got rid of it earlier

The Italian city states, the Baltic states, or the Netherlands were more commercialized centres of long-distance trade.

England had the Channel. This meant it could rely on sea power to stay safe. Also, it had Stuart monarchs who had a soft spot for Catholicism. This is why the country wanted to keep the profits from Naval hegemony in private hands.  

The Renaissance was centred in continental Europe. England’s advantage could not have been its more advanced culture or its market institutions.

After the Black Death serdom, de facto, disappeared. Since no part of England is more than 70 miles from the sea, there was greater connectivity. The country has not suffered a famine since 1620.  

Rather, these theorists argued, the first capitalist transformation in England was the outcome of a fortuitous balance of power between peasants, lords, and monarchs that allowed lords to enclose the commons,

 

yet prevented them from reducing the peasantry to serfdom as in Eastern Europe and Russia.

This is extraordinarily ignorant. England did have serfdom but de jure got rid of it just as Russia began to go the other way. Incidentally, the commons were, de jure, manorial possessions under the Crown. Regulation of these spaces was managed locally through manorial courts, and rights were formally protected and limited by historic agreements such as the Charter of the Forest (1217) and the Statute of Merton (1235), which allowed lords to enclose parts of the commons only under specific conditions. Interestingly, the Black Death, over a hundred years later, permitted Lords to enclose more land. 

The Enclosures gradually privatized common village lands over several centuries, but allowed richer peasants to become capitalist tenant farmers by leasing land from enclosing landlords. This created a landless proletariat and capitalist farmers, but also new inequalities which, far from being aligned with ‘Western values’, were strongly resisted by the Church (Tawney 1938).

Then the Catholic Church was chased away. Its lands went to the new gentry.  

Nevertheless, the emergent agrarian capitalism drove innovation and productivity growth. Intense competition between capitalist farmers who had to raise productivity to pay rising rents to landlords led both to the development of technology and the imposition of  discipline on workers who adhered to new rules because being landless they had no exit options.

If able-bodied, they were forced to work. There were legally mandated wage caps though this was often circumvented. The Poor Law was actually quite coercive.  

The configuration of power was therefore critical for the English transformation,

Though there were secular socio-economic trends even though 'configurations of power' kept changing from century to century.  

rather than a hard state or specific cultures and values, though cultural and other factors may have played some role.

What mattered was the navy. Since England had the Channel, it could focus on the Navy which meant a global market supporting innovation & the gaining of economies of scope and scale.  

Similar institutions did not emerge in much of Europe till military competition with Britain persuaded Bismarck, Napoleon, and other state leaders to organize political coalitions to push through institutional transformations from above that achieved capitalist transitions.

The French Revolution, exported by Napoleon, ended feudal law codes. Prussia, gaining the Rhineland,  promoted the Zollverein (a free internal market) Von Motz was its architect. Bismark was a kid at that time. 

Similar state-led transitions began in Asia with the Meiji revolution in Japan in the nineteenth century, which foreshadowed transitions in Taiwan and South Korea in the twentieth. In each case, the transition was driven by different types of state and non-state organizations but, in all cases,

people were sick and tired of what went before. China had a Revolution. Sadly, the Army Chief decided to crown himself Emperor and thus China experienced a period of War Lordism before the Japanese invaded. 

a specific distribution of organizational power

didn't matter at all. There was an existential threat. Either Japan modernised or it would go the way of South and South East Asia.  

enabled outcomes that led to the emergence of new institutions

they were copied directly. This was Tardean mimetics at the national level.  

and more dynamic societies. These institutional changes were mostly gradual rather than revolutionary breaks with pre-existing cultures

No. In East Asia there were dramatic breaks. India could be said to have gradually evolved in to a democratic Republic.  

and norms, though the latter changed over time as production systems and power configurations changed. In every case, there was resistance from losers, but the losers were typically not the small groups of privileged monopolists, as in Acemoglu and Robinson’s analysis. The resistance to the Enclosures in Britain came from peasants.

There were a peasant rebellion in the 14th century (John Ball) and one in the 15th century (Jack Cade) but after Kett's rebellion in 1549 there were no more rebellions though local action might be taken to protest particular enclosures. 

Far from inclusive institutions assisting the majority, the dispossessed peasants could not block these changes because parliament was not inclusive enough.

Parliamentary supremacy was established only in 1688.  

Representation was restricted to property owners. Nor did parliament play a role in ensuring that peasants were rapidly or fairly compensated.

The Poor Law did create a basic safety net though much depended upon the Parish authorities. Still, emigration was a safety valve.  

They were not compensated at all. Parliament therefore played no direct role in the institutional transformation. The transition was successful because landlords could expropriate common lands without much peasant resistance, but they could not expropriate the peasant’s own land because peasants had sufficient collective power at the village level.

I don't understand this. Perhaps the reference is to 'cottars and bordars' but they could be summarily evicted. Indeed, agricultural labourers living in tied cottages could be made homeless very easily before the 1976 Act.  

This fine balance of power ensured a capitalist transformation of agriculture that eventually led to an improvement in welfare across classes.

Emigration and rising wages in the cities, coal mines, etc. did help.  

The configuration of organizational power and political institutions mattered, but in more complex ways than Acemoglu and Robinson suggest.

No. What mattered was productivity and 'exit'. If you can go to where you will be better paid, it makes sense to learn how to be more productive. If you can't exit, why bother? You are bound to be preyed upon. 

Economic rent only arises where supply or demand is inelastic. It does not exist if there is perfect elasticity- which is what happens if there is free exit and open markets. 

 Rents can be defined in a number of ways, but they usually refer to incremental incomes associated with specific institutions.

A guy who works for the Post Office may get a pay increment. It isn't a rent.  

Some institutional changes, like the creation of artificial monopolies, create rents that are socially damaging.

They may be. They may not. For a repugnant or demerit good, monopoly may be better if it leads to lower sales. 

Where there are non-convexities, an artificial monopoly may be a very good thing.  

But welfare-enhancing interventions that create or reallocate property rights or address market failures also create incremental incomes somewhere.

I think they can create 'imputed wealth'- e.g. getting a rent controlled apartment may be like getting a big inheritance. We say 'consumer surplus is capitalised'. If the landlord gives you a big sum of leave to quit his apartment, that's money in your bank account. 

What types of rents are created and how they are allocated and managed can serve as a useful lens for assessing the rent-creating institutions.

The law creates rents. Thus, one could say the Legislature, at the end of the day, creates and allocates rents. But we assess the legislature directly. Is it favouring the rich or the poor?  

Dynamic societies have institutions that allow growth-enhancing transformations of rights and the creation and management of rents that drive learning, innovation, and political stability.

Two societies with very different institutions may be equally dynamic or equally stagnant.  

Less dynamic societies mismanage rents, allowing some groups to capture assets and rents without delivering results, or they create rents that are directly unproductive, like monopoly rents or conflict-inducing redistributive rents.

This may lead to greater dynamism as innovative people flee the stagnant sector & join one which is unregulated and capable of rapid growth.  

Since all institutional changes create new incomes, they inevitably create rents.

Not if there is free entry and exit and all goods and services are traded on open markets- i.e. everyone is a price taker. This doesn't mean there might not be economic rent where there is 'local monopoly'- e.g. a property situated closer to transport links.  

Not surprisingly, the emergence of institutions is usually driven by

recognition of a collective action problem or else imitation of some other country which is taken as a model.  

rent-seeking and they create incentives for further rent-seeking.

There are plenty of institutions which aren't commercial in any way.  Sadly their assets may be stolen by those who are supposed to safeguard them. 

South Korea began its industrial take-off shortly after Park Chung Hee took power in a military coup in 1961. By then South Korea had already carried out substantial land reforms as the Japanese occupation had forcefully dispossessed the most powerful elements of the Korean yangban landed elite and converted much of their land to Japanese ownership. With the departure of the Japanese, land reform based on the redistribution of Japanese land and the compulsory purchase of land from the remaining landlords was relatively easy to achieve.

Urgent to achieve otherwise support for Communism would have increased.  

These reforms led to a significant equalization of landholdings and a dramatic reduction in the number of tenants as they became smallholders. However, it did not create a class of yeoman tenants on the English pattern who could drive an agrarian capitalist revolution from below.

'Yeoman tenants' did not do so. They diversified their portfolios and sent their younger sons into various guilds or the learned professions.  

The global conditions were not right for smallholding agriculture to make much of an impact on South Korea’s economic progress.

The peasant may have been happy enough, now that he owned a bit of land but the urban masses could be pulled toward Communism. If South Korea emulated Japan it would rise economically. The dictator was prepared to crush the Unions and 'Civil Society'.  

At best, the land reform created political stability in the countryside in the face of the communist threat from the North, expanded the domestic market somewhat, and perhaps created a greater demand for education in the countryside (Kohli 1994; Putzel 2000). The real impetus to South Korean modernization came with its industrial push in the 1960s.

If it didn't industrialise, urban youth would despair of the economic model and look to North Korea.  

A critical feature of the new institutional structure was the provision of significant rents to the chaebol (the large family-owned conglomerates of South Korea), to enable them to engage in learning-by-doing to improve their organizational and technical capabilities (Amsden 1989; Khan 2000b). The institutions supporting their learning also compelled the chaebol to rapidly acquire international competitiveness by withdrawing support if they failed to perform. The credibility of the withdrawal threat created compulsions for rapid productivity growth and ensured that infants did not require permanent support.

The Dictator would arrest businessmen or senior chaebol leaders and force them to hand over their ill gotten gains. His successor bankrupted a big chaebol which hadn't contributed enough to his election fund.  

Myrdal’s fear that unproductive rent capture would compound the problems that any interventions tried to solve did not materialize in South Korea.

But the Dictator could do what he liked.  

Why did South Korea not fall into this trap?

Because guys who angered the Dictator were sent to jail or forced to hand over all their money.  

Pakistan provides a good comparison with South Korea because it attempted a similar mix of import substitution and export promotion, and provided rents to large holding companies using similar instruments (Khan 1999). Indeed, in the early years, South Korean planners came to Pakistan to learn about planning strategies. While there were many differences between the two countries, the decisive difference was that large Pakistani companies were connected to powerful and dense networks within the bureaucracy, army, and political parties, and could use their help to successfully retain rents even when their failure to become competitive had become obvious.

There wasn't one angry dictator who could fuck you up if you displeased him. Park was so feared, he was killed by his own intelligence chief.  

The organization of patronage networks in Pakistan was fragmented, but each network was powerful enough to resist disciplining by others or by state agencies. In the late 1960s, the media openly reported how ‘twenty-two families’ had captured public resources, but the military regime was unable to impose discipline on its inefficient clients.

Zulfiqar was but this fucked up the economy. Mujib was even worse in Bangladesh.  

There was much corruption in this process, as Myrdal recognized, but it was more than just a problem of corruption. The value-reducing rent capture by powerful networks hurt the legitimacy of the ostensibly powerful military government.

Losing wars did that.  

It tried unsuccessfully to rein in its clients, including revealing their names and the money they owed, but it failed. The regime was eventually brought down in 1971 as a result of popular mobilizations against cronyistic elites.

Field Marshal Ayub Khan stepped down as President of Pakistan on 25 March 1969 primarily due to nationwide mass protests, severe economic unrest, and the loss of support from the military. His successor held elections which was won by the Bengali Mujib. This did not sit well with Bhutto or the Punjabi/Pathan military. The result was a war which the Pakistanis lost. 

The failure was deeper than knowledge, values, or interests. The top leadership had strong incentives to limit rent capture by uncompetitive business groups but they failed to overcome their resistance.

The loss of East Pakistan hit the balance sheets of some of the 22 big business houses. However Bhutto's nationalization program was an utter disaster from every point of view.  

The nature of the failure suggests that a different policy design, perhaps supporting smaller, less-connected capitalists, or rewarding investors after they had achieved some results rather than giving all the rents upfront, may have worked better in this political settlement.

Why not just get the 22 families to cough up more in tax? 

Indeed, we find that other strategies of supporting learning worked much better in a number of sectors in South Asia in the 1980s. We know as a result of later revelations by the chaebol that the allocation of industrial policy rents in South Korea in the 1960s involved much corruption. But, here, corruption did not featherbed inefficiency. The chaebol receiving support knew they had an opportunity to become competitive, but they also knew that the option of capturing the rents while remaining uncompetitive was not feasible.

Pakistan tended to overvalue its currency and to support export industries with loans even when this was not economic. 

This was because the state agencies monitoring them were more powerful than the networks that individual businesses could mobilize. The agencies figured out that their formal and informal payoffs would be higher if they reallocated rents to chaebol that could grow and generate additional profits rather than inefficient ones that could not.

Put more simply, if you back a winner, you get invited to better and better banquets. Back a loser and soon all you will get is a half pint of bitter and a packet of pork scratchings.  

Corruption still happened, but here it was of a profit-sharing type. The chaebol needed the support of the state, and they were willing to treat the political leadership as informal business partners who could claim a share of profits as ‘dividends’.

Whereas, State support was seen as an entitlement in South Asia. The Government school must admit my idiot of a son even if he will fail any and every exam and thus cause the School's pass-rate to fall.  

The logic was simple, and both sides soon worked out that profit-sharing corruption was not only not contrary to productivity growth, given the distribution of power, it created incentives and compulsions to achieve productivity growth.

One may say, East Asians were meriotcratic or focussed on winners. The South Asian mindset was about Entitlements.  

The rent allocation rules could not be distorted because critical agencies had the interest and the power to prevent it (Khan 1998, 2000b). Where did this capacity come from? It is hard to argue that contemporary South Korea had a culture with attitudes of rationality and discipline that were significantly superior to South Asia.

It faced existential military and political threats. When war is imminent, only winning- not entitlements- matter.  

True, it had a more developed industrial history as a result of Japanese colonialism, but this cannot explain why inefficient firms were not allowed to capture rents.

Because they would want the restoration of democracy. The Dictator wanted businessmen to focus only on business and the fear of arbtirary arrest and the forfeiture of their property.  

The capacity to withdraw rents and discipline the chaebol is more plausibly explained by a specific political settlement.

That of a Dictator.  

The historical roots of this can be traced back at least to the impact of Japanese colonialism. The latter was brutal, but it did not create a fragmented and competitive set of political organizations in its colonies, as the divide-and-rule strategies of British colonialism created in South Asia and elsewhere.

Korea did have competing political parties. The Brits wanted a united India. The Muslim League wanted partition which they got because they won 90 percent of the Muslim vote.  

The post-war South Korean political settlement was marked by an absence of powerful competitive networks within the state and bureaucracy,

there were elections unlike in Pakistan. Also a student uprising forced Syngman Rhee out of office.  

so individual chaebol could not collude and share rents with parts of the network to prevent themselves being disciplined by other parts.

Park didn't trust the chaebols. Let them fear him and focus purely on growing their businesses. Park also wanted South Korea to rise in the value chain so as to give urban youth the sense that the country was catching up with, the old enemy, Japan.  

When the South Korean state began its industrialization drive, its leaders did not have pre-conceived ideas about how to make rent allocation achieve dynamic results. Rather, trial and error revealed that making support to a chaebol conditional on the achievement of export targets resulted in rapid productivity growth because the rule could be enforced.

How? By arresting business men and making them hand over their property.  

The chaebol put in lots of effort to raise productivity, knowing that the alternative would be disastrous for them. Once the enforceability of these rules became known, the system evolved in a particular direction, with more ambitious learning strategies emerging. In contexts where state support could be combined with rules that compelled companies to achieve productivity growth, similar types of corrupt but ‘efficient’ profit sharing emerged in a number of Asian countries, including China in the 1980s.

Rules didn't matter. The wrath of the dictator did matter a great deal.  

Trial and error revealed a very different political settlement to South Asian state leaders. Leaders in Pakistan and India were soon aware that industrial policy rents were being unproductively captured and though this was not in their interest they failed to discipline their clients.

They wanted import-substitution. In India there was 'export pessimism'. This continued into the Eighties when Sukhomoy Chakraborty said 'Korea is small. Taiwan is small. They could get on the 'elevator'. India is too big. You can't lift hundreds of millions out of poverty through export led growth.' The guy was a fucking cretin.  

While individual bureaucrats and politicians benefitted, the higher-level leaderships lost out in terms of overall revenue and legitimacy. Individual businesses constructed alliances with powerful political and bureaucratic networks that undermined any possibility of disciplining them. The failure to govern rents was ultimately not due to flawed mental  models but rather a configuration of power that made it impossible to impose discipline on these firms.

In other words, India had a functioning judiciary. Still draconian laws of an economic type were introuduced in the Seventies. But this stifled enterprise.  

In India, Myrdal argued that productivity growth was not even an explicit goal of import protection, the latter was justified simply by the need to conserve foreign exchange (Myrdal 1968: 1158).

You need foreign exchange to buy state of the art foreign White Elephants. Sadly, doing so means you have no fucking foreign exchange.  

This is not true. Using protection as a rent allocation instrument to develop domestic productive capabilities was a demand of the nationalist movement, and it was supported by emerging Indian capital in the Bombay Plan of 1944.

Ideally, as in Japan, 50 years previously, the Government would create a new industry and then sell it off so as to have the money to create another new industry. 

Moreover, the failings of the industrial licensing system were of great concern to the Indian state (Chakravarty 1987). However, when state leaders discovered that efficiency could not be achieved, they would occasionally justify their policies by saying this was not even their intention. We know from the report of the Industrial Licensing Policy Inquiry Committee (Dutt 1969) that Indian policymakers were painfully aware that businesses they supported were not meeting their licence conditions and instead using their licences to behave like monopolies. The Dutt Committee recommended sanctions on business houses that failed to comply with licence conditions, but this was not implemented.

The MRTP Act was passed. The problem was that cancelling licences just recreated the same problem.  

As in Pakistan, the problem was clearly neither ignorance nor the interests of state leaders. Rather, the peak agencies that wanted to achieve productivity growth were weak relative to the powerful networks below them who saw greater benefit in capturing rents without delivering results and using the rents to sustain their power through patronage networks.

No. By then, most people were convinced that Nationalizing everthing was a panacea. Why let the private sector become more productive when this would give the State an incentive not to kill the golden goose?  

The distribution of power was the real source of this prisoner’s dilemma outcome,

Power shifted to the Left in 1969. There was no prisoner's dilemma. Capitalism was evil. In any case lots of companies were turning 'sick' & thus coming under Government control.  

while the ability of political leaderships in developmental states to discipline free riders allowed the pie to increase for everybody.

India was a developmental state but it wanted Socialist development. The people too thought of Nationalised industries as being equivalent to Civil Service jobs. People wanted employment. They didn't want to do any fucking work.  

Institutions and institutional outcomes reflected the political settlement rather than values or norms.

No. Politics- Indira's lurch to the left (like Bhutto's or Mujib's)- fucked up South Asia.  

We turn now to Myrdal’s analysis of the soft state. It is true that planning agencies in South Asia could not discipline businesses protected by political entrepreneurs from the intermediate and upper classes and their clientelist networks.

Sure they could. Nehru & Indira were large & very much in charge. Political entrepreneurs were no match for the Dynasty.  The intermediate class did back regional/religious parties but they too saw no alternative to Socialism. Why? What everybody wanted was a Government job or, if that was not possible, one in a PSU. This was the Indian 'iron rice bowl'. 

But other state agencies were able to discipline subaltern classes

you co-opt the subaltern. Why crush your own potential foot soldiers?  

or regional separatist movements.

The Indian army kicked ass. The State had plenty of capacity for extrajudicial killing.  

In these conflicts, states in India and Pakistan were ready to use overwhelming force to ‘discipline’ segments of their societies. The enforcement problem was therefore limited to specific sectors and institutions rather than being a general malaise of social indiscipline.

There was an incentive problem. More enforcement just meant that the golden goose turned to shit.  

The specific instruments that were used, particularly for promoting industrial development, had governance and disciplining requirements for specific organizations that could not be adequately enforced.

Why? In business, economies of scale matter a great deal. Focus on that and your enforcement problem disappears. I don't say the State should pick winners but it should back winners if only because this grows tax receipts faster.  

The implication is that other institutions and instruments allocating rents to a different set of organizations may have achieved better development results.

How? The plain fact is the quality of entreprenuership was poor. Marshall had noticed this in 1910. There were notable exceptions but, the fact is, in the Fifties and Sixties, when some Marwari took over a British firm, he ran it into the ground pretty quickly. Was there some corrupt offshoring of wealth? Probably. Why didn't the Government reform the financial markets to put an end to this sort of mischief? The answer is simple. Socialists want Capitalism to collapse by itself.

This insight can help to explain the significant growth accelerations in a few sectors in India and Bangladesh in the 1980s with relatively minor institutional and policy innovations. The previous industrial policy had achieved output growth in many sectors, but productivity growth was low because of poor disciplining. As a result, competitiveness was typically not achieved in most sectors (Acharya Mushtaq H. Khan 337 et al. 2003: table 2.2; Virmani 2004: table 1; Bosworth et al. 2007: table 3). The growing economic openness from the 1980s helped imports of capital and machinery, which supported productivity growth. But the achievement of competitiveness also required policies that assisted learning and capability development. What is interesting is that relatively minor institutional and policy innovations created the compulsions for productivity growth that were previously missing.

It created the incentive for capital deepening but of an imitative sort. Back in the 90s, I bought a BPL TV in London.  It used to have 9000 employees. Now it has 151. As usual 'family feuds' featured in its decline. Currently, the Tatas & Mistrys seem to be entangled in such feuds. Let us see whether the RBI succeeds in getting big firms to publicly list their shares. If this does not happen, industrial policy will always be on a shaky basis. 

The new policy and institutional innovations in a few sectors were successful because rents were delivered to organizations that did not have the power to protect them unconditionally.

No enterprise had any such power.  Sadly, family feuds could and can bring down almost every Indian company. 

Conditions could be credibly enforced that would hurt the firms if they failed to deliver results.

Like what? Loss of a licence? But who gets the revoked licence. You can't wave a wand and magically create competition.  

An important feature in several of these take-offs was that investors were induced to first invest their own resources in learning, with policy promising sufficient ex post rents to give a high return on their risky investments if they succeeded.

That is profit, not rent. Only if you say 'grow big enough and we will give you protection' would this be the case. But if you will get protection, you won't go all out for economies of scope and scale. You just have to have higher capacity than your closest rival. 

I have discussed these examples at greater length elsewhere; they included automobiles and pharmaceuticals in India and garments and textiles in Bangladesh, sectors that drove growth accelerations in these countries from the 1980s onwards (Khan  2011,  2013a,  2013c). The cases are different, but we can summarize the Bangladeshi garments and Indian automobiles cases to illustrate their common features.

Bangladesh got lower tarrifs for textiles and thus foreign firms as well as domestic entrepreneurs (or Indian entrepreneurs) set up factories there. India has a big internal market for cars and so foreign firms set up partnerships with Indian entrepreneurs.  

In these two cases ex post rewards were created for a foreign partner to transfer capabilities to domestic firms.

Did you know your salary is an ex post reward? What's so strange about firms investing in a place where they expect to make a healthy profit?  

In a third sector, Indian pharmaceuticals, the story was slightly different. Here ex post rents

profits 

were created for domestic firms if they succeeded in developing manufacturing capabilities by backward engineering based on the application of the Indian Patent Act of 1970. But all these sectors were similar in rewarding successful capability development ex post

salaries are paid in arrears. Profits are like salaries. You get it after the work has been done and the product has been sold.  

as a way of encouraging prior private investments and being successful in the implementation of these rules. In the Bangladesh garments sector, the critical instrument was an agreement in 1979 between a Bangladeshi company, Desh, and a South Korean company, Daewoo, backed by the Bangladeshi state.

The Bangladeshi dictator personally assured the South Koreans that the government would expedite matters.  

The context was the Multi-Fibre Arrangement of 1974, which created potential ex post rents for least-developed countries like Bangladesh if they could achieve sufficient quality and competitiveness to sell garments in the quota-protected US market.

The South Koreans had hit their quota limit.  

The protection created quota rents in the US market, and the agreement was to pass on the potential quota rents to Daewoo as its reward for transferring export capability to Desh (Khan 2013b). The rule essentially transferred a percentage of future sales revenue to Daewoo, and this was sufficiently rewarding for it to invest in capability transfer. What made the rule easy to enforce was that unless Desh acquired the capability to export, no one would make any money. No ex ante rents were allocated to powerful businesses in Bangladesh, so there was no possibility of capturing these rents. The rule for transferring quota rents to Daewoo was also credible because the Bangladeshi state could prevent a relatively small firm from violating a contract that the President saw as vital for the country.

The problem was that if the President was killed (he was) and some crazy Socialist came to power, then the plant would be seized. The Koreans took the risk because Zia was well regarded by the Islamic block where the Koreans were earning well.  

This combination of credible ex post rents for Daewoo and compulsions for investors to recover their investments resulted in dramatic capability development. Desh became a competitive firm within months of sending an army of supervisors to South Korea to learn factory and supply chain organization. As the organizational design that it adapted was appropriate to Bangladeshi conditions and could be easily imitated, thousands of Bangladeshi entrepreneurs entered the garments industry. The explosive growth of the sector created millions of jobs and within two decades Bangladesh had become the second biggest garment producer after China, though still far below China in absolute terms.

Bangladesh doesn't have much market power. So this isn't a story about economic rent. It is a story about minimizing costs & improving quality so as to get a return on your investment.

In the Indian automobile industry, the government signed a joint venture agreement in 1982 between Suzuki, a Japanese company, and Maruti, a public sector Indian company, allowing Suzuki to sell in the highly protected Indian market if it could produce an Indian car with sixty per cent domestic content within five years. Given that Indian tier one and two producers already had basic technical capabilities, the incentive of capturing significant tariff rents ex post was sufficient for Suzuki to invest in developing the capabilities of its Indian suppliers.

No. The incentive was to increase its equity share till Maruti got publicly listed (by which time Suzuki was the majority shareholder. It is true that there was 'tariff rent' in the sense that Maruti was about 50 percent more expensive than the global equivalent but it was 40 percent cheaper than the shitty 1950s style Indian cars. 

I may mention Suzuki was taking a bet on the Gandhi family. Maruti had been Sanjay's company. Indira could be trusted to favour it for this reason.  

Here, too, the mechanisms of rent allocation were credible to the parties, as was the enforceability of the conditions.

It was a risk. What if Indira was killed and the Commies came to power?  

Rents could not be captured by Indian components producers because no ex ante rents were transferred to them.

Component producers have little market power. Barriers to entry are low. They don't get rents in the ordinary course of things.  

A failure to achieve international standards with Suzuki’s help would simply be a lost opportunity for future profits. Suzuki knew that the strong opposition to its operations from domestic automobile and machine tools producers meant that a failure to achieve the domestic content conditions would result in exclusion from the Indian market.

You can always fudge the numbers. 

There was no question of the capacity of the Indian state to enforce this condition. As Suzuki was investing first, it had strong compulsions to succeed as that was the only way to capture the ex post tariff rents.

You have to sell cars to get paid for making them. The risk was that Indira would fall and her successor would fuck over Suzuki.

East Asia has experienced wars or revolutions. South Asia hasn't. But South Asian countries could have doubled down on devaluation and export-led growth like South Korea.

South Asia inherited a very different political settlement.

because the British inherited a very different political settlement as did the Mughals & the Aryans & the Dravidians before them.  

Both democratic and authoritarian governments in India, Pakistan, and Bangladesh discovered their enforcement capabilities were limited when they faced powerful political and bureaucratic factions organized by the ‘intermediate classes’.

Sugar lobbies etc. are important in countries with a very big agricultural sector. Armies recruit from the villages so even a military dictator has to be careful. But the 'intermediate classes' (small businessmen with a relative in Government service and another in some political party or caste association) aren't involved in high tech manufacturing. You may say 'power-loom sector' must be appeased but they are scarcely capturing much in rent.  

Myrdal described a moment in the history of these countries when they were using policy instruments that were seriously distorted in their implementation.

India was doint stupid Socialist shit. If Ayub had won the 1965 war, he'd have been unassailable. But he lost. The Army decided not to back him. Then they held elections.  

Subsequent developments in the 1980s and beyond show that substantial growth could be achieved

by letting people make money & letting enterprises which lose money shut down.  

with policies and institutions allocating rents in other ways,

you can't allocate what doesn't exist.  

even though these have not been developed to their full extent. Nevertheless, the long-run pace of development in South Asia is likely to be slower and more uneven than in North East Asia.

It may be faster because of 'low hanging fruit' & the possibility of new technology permitting 'leap-frogging' i.e. better, cheaper, infrastructure- e.g. mobile phones instead of landlines.  

South Asian states do not have the political and institutional capacity to support development across a broad range of sectors and regions all at once, as these strategies typically require disciplining a broad range of policy rents.

In poor countries, theft is a problem. Fraud is a problem. Absenteeism is a problem. Religous riots are a problem. Rent seeking is a problem only in advanced countries where some enterprises have a lot of market power & are willing to use PACs & lobbyists to protect 'super-normal' profits.

Khan ends his paper thus 

The growth and empowerment of powerful productive organizations that will eventually demand the enforcement of rules in their own interest

they can do this through an industry association of their own. Rule breakers lose accreditation & this affects their credit & share price.  

is the only sure way of eventually creating an effective demand for a transition to a rule-following society.

At the margin, carrots & sticks matter. But, overall, mimetic targets matter more. Public signals in this matter can improve the Aumann correlated equilibria.  

As against this, regressive interests and organizations in these societies can also be expected to mount their own rent-seeking and influencing activities.

Stupid Socialists we will always have with us.  

We can expect them to try and distort institutions in ways that can be described as social indiscipline, corruption, regressive social norms, and impunity. The pace of, and prospects for, development are likely to depend on the contest between these contending forces

Or not. A society can become disenchanted with politics and focus just on commerce for a generation. The rule in commerce is, if you want to rise long term, be honest. Gain goodwill. It is a balance sheet asset. For India, this means family run firms should heed the RBI and get publicly listed. Don't let 'family feuds' fuck up the legacy of your ancestors.