Comma, coma, comatose

Of late, it has been reported in the media that just because of a 'comma' the AirAsia deal could be approved by the Foreign Investment Promotion Board (FIPB) as the meaning became different had the particular comma not been placed in the sentence. This is difficult to believe. Though the then finance secretary, who headed FIPB at that time, had called it bad drafting, he had defended the approval given to AirAsia and passed the buck to the Ministry of Civil Aviation for not applying its mind while giving going through the proposal. This is a typical instance of the right hand not knowing what the left hand is doing and vice versa. This is not acceptable. The government is expected to work in tandem, without contradictory orders, policy documents and statements being issued by different ministries and directorates.

Different ministries in the government approved the use of comma and provided an interpretation which suited the foreign airlines in partnership with Tatas in India, however, there are different opinions about the intention of the policymakers and as to how the market could have interpreted the policy, especially the spirit of the policy rather than going by the letter. There is hardly any confusion that the policymakers wanted more foreign investment to be made in airlines in India and because of this reason the policy document was written so as to attract prospective investors to invest in the country in partnership with Indian companies.

It is a little bit difficult to understand and agree that the people in airlines business at that time were not able to comprehend the real purpose of the policy document, and had really gone into the literal and grammatical interpretation of it without seeking any formal or informal clarification from the government of the day. Long ago, the noted lawyer Nani Palkhivala had written that in India we interpret our statutes as if they were an exercise in grammar. Now the time has come when the interpretation of statutes or any policy document should more be of understanding the intention of the legislature and the executive, which has been delegated the powers by the legislature, so as to facilitate business and the growth of the country. Going into such finer aspects of interpretation using punctuation marks may be a very good exercise for law students and lawyers but it does not serve the purpose of providing a better business environment in the country.

"Foreign airlines are also allowed to invest in the capital of Indian companies, operating scheduled and non-scheduled air transport services, up to the limit of 49% of their paid-up capital." It is the comma after 'Indian companies' and before 'operating' which has been to the cause of trouble of the exercise of interpretation.

Once it was known that there was confusion due to the comma, it is preposterous to be made to believe that the government could not have come out with the clarificatory order as to what it really meant, comma or no comma. It is agreed that any such order would have also been open to interpretation. In India, with the doors of the courts always open to litigants such an interpretation or an order would have always been challenged – given the stake is too high – but nonetheless, the government would have been very clear from the beginning or done the necessary mid-course correction. It is, therefore, surprising that such matters could be argued and defended by responsible persons on the basis for punctuation mark rather than going by the spirit of the document.

Earlier this year an American company – Oakhurst Dairy – had to settle with its drivers just because of the punctuation mark of a comma also known as the 'Oxford comma'. The company paid about $5 million. Such dispute and litigation in the United States cannot justify similar things in India. It would not be right to compare the American case with the instant issue in India. The reasons are simple to understand. The US is decades, if not centuries, ahead of India in its development, and, moreover, it is known for being highly litigious. With many lawyers in the system and the deep sense of litigation prevailing everywhere in the country, American companies with deep pockets can afford search litigation. India, with all its constraints, is not in a similar position and, hence, the government and also the business fraternity must realize that spirit is far more important than going simply by the letter of a document.

In case of any confusion, one can always clarify and initiate business with good intention and clean hands. Comma need not lead to coma and comatose.

The author is a professor at IIM-A,
akagarwal@iima.ac.in