India’s infrastructure sector is a pivotal engine in thrusting its economic growth. The sector in itself comprises of various concomitants which in their own capacity are crucial for heralding India’s growth, especially as the national economy grapples with the horrors of the pandemic. However, while the importance of the sector is undisputed, its speed of growth is obstructed by numerous hurdles. Not only does this slow growth, it also impedes the ability of the sector to keep up with technical advancements across the world, thereby pushing the economy further back. The sluggish pace becomes a contributing factor for lack of investment in the sector, thereby forming a continuous loop, disallowing the sector to bloom at its full potential. Therefore, in such a background, the need for technical expertise and enhanced investments becomes important. In order to make investing in infrastructure industries in India more lucrative, it is crucial to identify what ails the sector. Contractual impediments, technical and natural factors, are particular areas of concern. This piece looks to understand the present state of the sector and the technical expertise around it, while trying to provide constructive solutions and suggestions. The need of the hour is to identify what clogs the sector from running at full flow and how it can be taken to its full potential, especially in the era of a global pandemic.
Introduction- Why and Present Scenario
India’s infrastructure and construction sectors are one of the most prominent industries of the national economy. The segment covers a variety of sub-groups specifically power, roads, ports, railways, telecommunication etc., each of which play a substantial role in promoting the economic growth and stimulating development. Studies conducted across different economies suggest an instrumental linkage between improved infrastructure and financial growth.
As far as India is concerned, the infrastructure sector and its multiple facets such as roads, railways etc., constitute the cornerstone of the country’s economy. The constant development and enhancement of these facets is accordingly essential for the potential increase in productivity and smooth operation of other business sectors in the country. Additionally, technological changes and developments have created a vast array of new opportunities for changing the way in which infrastructure is provided in different sectors. Microelectronic monitoring devices and non-destructive testing techniques are seen as a huge technological boon for the assessment of infrastructure facilities at reduced costs. Electronic information systems, such as geographic mapping, have improved the accuracy and precision of network operations. Specifically in India, use of technology has reduced the risk factors in agriculture, particularly the threats posed by natural calamities, which has allowed farmers to plan and prepare effectively. There lies considerable potential in the agriculture sector in terms of making it a more scientifically-driven activity, prone to lesser losses. Further, innovative technological developments such as the use of nanotechnology for water purification and improvements in water desalination technology also indicate that advancements in technology can serve as an efficient manner of stimulating water conservation and purification activities in India.
However, India’s endeavours to establish its economic supremacy on the back of an efficient infrastructural sector, demands a whopping Rs. 50 trillion in investment, to be able to achieve sustainable development in the country. Although infrastructure investment has been one of the government’s top priorities particularly in the last 5 years, its commitment has not been enough to satisfy its demand. For India to achieve its growth targets, the investments in the infrastructure sector have to go up by almost Rs. 730 Crores, which is effectively double of what it invests now. In fact, some of the challenges to infrastructure investment are peculiar to the Indian economy, one of them being that India has not traditionally been a lucrative destination for private investment.
The technological gulf between India and the rest of the emerging economies, particularly its neighbours has traditionally been wide. However, technology trends in the past decade have boosted the government’s efforts to bring India up to speed with its competing economies. India has been swift to emerge as a global hub for not only technical innovation but technical consumerism. In 2018, India sat only behind China in the number of internet subscribers, indicating that India was digitizing faster than any of its neighbours. The onset of the pandemic in 2020 stalled India’s technology growth, with the industry being pushed into a remote working model owing to a nationwide lockdown to contain the spread of the pandemic. However, the technology industry has adapted well and in the last year, has built world-class infrastructure on remote working, thereby avoiding substantial hurdles. While India’s technological growth has been stellar, there continues to be a visible gulf in technological advancement in India as compared to other nations. For instance, access to IT for India’s rural populace remains one of its long-standing challenges in this regard. Further, several small enterprises in the slightly backward regions are either cut-off from technology or have very little access to it. Accordingly, there is still a lot to be achieved as far as comprehensive technological progress, but that being said, the social and economic benefits of driving this growth cannot be emphasized more.
Independent regulation for specific sectors has gathered steam in India with the turn of the millennium. The growth of private participation especially in infrastructure sector has had a major role in the advent of independent regulatory authorities to catalyse the involvement of private sector through competition and privatisation. [i] Regulation can be simply defined as different modes of ensuring government vigil over industries. Regulation primarily entails monitoring of price, entry, market structure and quality, among others. Regulation is not confined to playing a role only where private players are involved. It also plays a role in sectors which have predominantly been state monopolies or dominated by state involvement, such as electricity distribution, telecom, oil etc. which have dominant incumbents. The role of regulation is thus to ensure a compliance with fair and ethical market practices, free from interference by private entities or the government, in a manner that ensures smooth functioning of the market.
As far as the infrastructural sector is concerned, the sector itself covers a wide array of smaller sectors, such as power, roads, railways, ports etc. Mostly each of these sub-groups have their own sector-specific regulatory authorities which have been set up by a statute. Each of these sectors is regulated by these exclusive regulations and policies which are shaped by sectoral realities. This allows for the better handling of precise technical nuances which characterise each segment and monitor the behaviours of existing and budding entrants.
The first attempt at regulating the power sector was made in Orissa in 1996 in order to facilitate the privatization of distribution. Subsequently, the Central Electricity Regulatory Commission (CERC) was set up as a centrally owned body pursuant to the Electricity Regulatory Commissions Act, 1998 (ERC). In some states, the establishment of the SERC’s had been inconsistent with only a little over a half of the states having set up a state regulatory commission. However, political commitment to strengthening the regulatory institutional framework was indicated by the enactment of the Electricity Act, 2003, which replaced the previous ERC which has evolved as an unified legislation dealing with the electricity sector. This has led to greater responsibilities being given to state regulators, working under the aegis of the CERC, which looks after resource planning and setting of sectoral standards. Under the present framework, ERC’s have been set up at both state and central levels and an Appellate Tribunal for Electricity (APTEL) is tasked with hearing appeals against the decisions of the state and central commissions. Furthermore, this Act has also identified the CEA as a technical advisory to the Central/ State Regulatory Commissions and the Government of India.
Oil and Gas Sector
In the oil and gas sectors, the regulatory role is performed by the Petroleum and Natural Gas Regulatory Board, which has been set up under the Petroleum and Natural Gas Regulatory Board Act, 2006 (PNGRB). The PNGRB is accountable for regulating the process of refining, processing, storaging, transportation, distributing and marketing the petroleum products. In essence, the PNGRB is a regulator for the midstream and downstream sectors. The up-stream activities in this segment are regulated by the Directorate General of Hydrocarbons (DGH), whose primary responsibilities are to advise the Ministry of Petroleum and Natural Gas with respect to the survey of Hydrocarbons, their optimal exploitation, review of exploration programs and recommending the Government on how to formulate regulations relating to the safety in oilfield operations. The DGH works under the aegis of the Ministry and is not an independent sectoral regulator. The Directorate General of Mines Safety (DGMS) is the regulatory agency under the Ministry which is responsible for the safety of onshore blocks while the Oil Industry Safety Directorate (OISD) is the safety regulator responsible for the upstream offshore blocks.
There is no specific industry regulator which looks after the energy sector as a whole apart from the sector-specific regulatory bodies for electricity and oil and gas.
The Telegraph Act is the prime enactment, fundamental for the survival for the telecommunications regulatory framework in India which prescribes various powers to the government to operate and regulate telecoms services in the country. Under the current administration, the power to grant licences and approve production of telecom services lies with the Department of Telecommunications, the Ministry of Communications and Information Technology (DoT).
In 1997, the Telecom Regulatory Authority of India (TRAI) Act was passed by the government which led TRAI to be set up as the regulatory authority for the telecom and broadcasting sector which had the power to make policy recommendations on allied matters. Further, the TRAI Act also provides for adjudication of disputes between the telecoms licensees and the DoT through the Telecom Disputes Settlement and Appellate Tribunal (TDSAT). The DoT is responsible for formulating Policies aimed at accelerating the growth of the telecommunication services in the country.
Additionally, over the years the constant amendment of the Foreign Direct Investment (FDI) Policy, prescribes certain restrictions on the foreign investment and ownership within this sector. Henceforth, the government establishes certain thresholds which limits the amount of investment, entry routes and other conditions for such investment under the FDI Policy. This Policy separates several services on the basis of the foreign investment allowed, regulated and prohibited. Presently, the foreign investment in corporations engaged in telecommunication services, permit an FDI of up to 100 percent for most of the telecoms services and certain service-specific conditions however, apply some entry restrictions for the investment coming from abroad. Any amount of investment above 49 percent in a telecommunication entity would require the prior approval of the Government of India.
Ports and Airports
The starter of the private sector terminal operators in the ports during the mid 1990s led to an apprehension of direct confrontation between private operators and public port trusts. Consequently, a neutral regulator was established for regulation and control of tariffs, known as the Tariff Authority for the Major Ports (TAMP). The lawful ground on which TAMP has been founded is the Major Ports Trusts Act 1963. TAMP is considered to be a major financial regulator for major ports and is empowered with fixing and revising tariffs, even for thr privately owned terminals. TAMP further possesses the supremacy of controlling the efficiency of port and terminal services in major ports of the country.
As for airports, the principle regulatory authorities function under the Ministry of Civil Aviation. The Directorate General of Civil Aviation (DGCA) implements civil aviation regulations and controls air transport services, air safety and airworthiness standards. The Airports Authority of India has the authority to produce, upgrade, maintain and manage civil aviation infrastructure both on ground and in the Indian air space. The Airport Economic Regulatory Authority (AERA) is enshrined with the responsibility to determine the tariff for aeronautical services while the Bureau of Civil Aviation Security guarantees that the aviation security standards follow national and international obligations/treaties in air safety.
Roads and Highways
In the sector of Road and National and State Highway Infrastructure the Ministry of Road Transport and Highways is concerned with the formation and management of policies and research surrounding of road transport and highways in India. Its purpose is to increase the efficiency of road transport in India. As such, there is no specific regulatory authority for roads and highways in India. However, the National Highways Authority of India (NHAI) acts as the regulator as well as the operator of roadways, specifically national highways across the country. States have their own bodies and agencies to look after state highways and roads. Investors however have no recourse to an independent regulator.
Financing and Present Availability of Technical Expertise
India’s ambitions of sustaining its economic growth hinges significantly on its infrastructure sector. However, the ground realities are that the country is plagued with a feeble infrastructure setup which is failing to keep pace with the requirements of a budding economy and rising population. India faces a particularly stiff challenge from its immediate neighbour in China, which is transitioning towards consumption-led growth. Accordingly, the topmost priority for India is to develop a healthy and dependable national infrastructure, especially in the sectors of power and transportation.
The major channels through which infrastructure investment in India is sourced, may be bifurcated into internal and external sources. Internally, infrastructure financing is sourced through the Government, banks and other Non-Banking Financial Companies (NBFCs) while on the other hand, external sources include financing from international financial organisations or through external commercial borrowings and Foreign Direct Investments (FDI). [ii] The present financing landscape in India can be summarised under the above two heads as follows.
Traditionally project financing has been the responsibility of the government but in recent years, there has been a notable shift with higher participation of private organisations in bearing a more significant share of the total capital expenditure on infrastructure. Furthermore, the state has made efforts to facilitate Public-Private-Partnerships (PPPs) model by establishing the India Infrastructure Finance Company Limited (IIFCL). The IIFCL delivers refinance to qualified financial institutions against their infrastructure-lending portfolio and also long-term senior and subordinated debt through their involvement in lending consortium. To add to that, Infrastructure Debt Funds (IDFs) are special vehicles used for investment which have increased the inflow of long-term funds in infrastructure schemes. The recent sanctioning of different Real Estate Investment Trusts (REITs) has a massive potential of transforming the industry by allowing a steady flow of divergence, revenue, and value maximisation for potential stakeholders.
Apart from the government, banks have also played a essential role in funding infrastructure projects by catering for more than half of the debt funds required in the infrastructure sector. This has also been backed by numerous reforms by the Reserve Bank of India to ease out infrastructure funding in India. These measures include the Framework for Revitalizing Distressed Assets in the Economy, by which the RBI charted a plan of action to incentivize and prompt the detection of troubled projects while simultaneously also catering for the quick revival or sale of impracticable accounts. Additionally, the RBI has tried to facilitate refinancing of long-term projects with medium-term funds, known as Take-out Financing. In fact, the RBI even went on to announce Infrastructure Finance Companies (IFCs) as exceptions to NBFCs, with such IFCs having a minimum of 75% of their total assets to include infrastructure assets.
Another key internal source are insurance companies, which are the most apt for infrastructure financing. In India however, their contribution is marginal due to the slim insurance penetration and slug insurance density.
In the international debt market, one of the chief sources of infrastructure financing are international lending institutions like the World Bank which has provided support to the IIFCL through financing PPP projects. Furthermore, regional banks like the Asian Development Bank (ADB) have given significant financial and technical aid to India which has been channelled towards the infrastructure sector.
Yet another important source is through FDI. The government has allowed 100 per cent FDI under automatic route to ease financing in sectors like power, mining, civil aviation; construction projects; natural gas and petroleum; telecommunications; industrial parks and special economic zones. FDI will also be accepted through approval route in civil aviation and for companies financing in infrastructure. However, while the FDI flows into the country have been strong, a shortfall in the estimated FDI for infrastructure cannot be ruled out in case of prominent external shocks. Additionally, there has been a notable increase in the Foreign Institutional Investor (FII) investments for the listed non-convertible debentures and bonds circulated by infrastructure companies.
Shortfalls in the present Infrastructure financing regime
Currently, India faces an enormous gap in funding which needs to be abridged by addressing the issues which obstruct infrastructure financing. For instance, difficulties in land acquisition, delayed clearances, inefficient dispute resolution administration etc. are required to be addressed to make the infrastructure in india a more profitable investment for investors. Along with this there is also a need to establish a facilitating atmosphere with suitable protections to encourage better participation by private organizations in Indian infrastructure projects.
Technical Expertise in India and how it compares with the world
In recent years, India’s tech industry has blossomed rapidly on the back of robust focus on science and technology, realising its value in economic growth. India has been touted as one of the top five nations in the field of space exploration and has also entered the top 50 nations in the Global Innovation Index (GII) for the first time in the year 2020. The nation is aggressively making its way towards establishing itself as a leader in industrialisation and technological development. The noteworthy developments in the nuclear energy segment are likely to expand the country’s nuclear capacity. Moreover, nano-technology is predicted to transform India’s pharmaceutical industry. The agriculture sector is also likely to undergo a major revamp with the government investing heavily for a technology-driven Green Revolution. [iii] However, in order to capture the full potential of fresh technologies, it is important for the country to address barriers such as lack of computer literacy amongst a sizeable population and limited telecom infrastructure. In addition, policy makers can create an environment in which these technologies flourish by adopting appropriate regulations that protect the rights of citizens and by helping to foster an environment for innovation.
The success of India’s infrastructure sector today hinges on successful PPP projects. However, one need to factor that development of infrastructure through the PPP model was not envisaged by lawmakers when laws regarding infrastructure facilities were framed. For private participation to be successful, it is important for these participants to be vested with rights to develop, construct, operate and maintain the facility. In a PPP project, various types of contracts are commonly used such as operation and maintenance contracts, rehabilitation contracts, build operate transfer contracts, divestitures etc. Although the spectrum of contracts is a lot broader but these are some of the most commonly used contracts.
However, there are various risks and issues associated with contractual obligations and liabilities, specifically with respect to infrastructure investment which pose a challenge for investors. One of the major risks for investors in the infrastructure space relates to the enforcement of contracts, specifically in India. Lax enforcement of contracts is responsible for time and cost overruns in projects. The scenario in India is such that parties are not willing to go to court in case of disputes, which not only indicates the lack of an efficient and reliable dispute resolution process but also the comparatively relaxed law enforcement in the country.
Technical and Natural Factors
As mentioned earlier, there are various types of contracts and various stakeholders involved in each of them when it comes to infrastructure development and financing. Apart from the usual suspects in PPP projects i.e., the government and private sector developers, there are various other constituents in infrastructure projects. For instance, the key promoters and investors of the private developers enter into a shareholders’ agreement to maintain shareholding in the project as stipulated in the agreement. Subsequently, there are contracts entered with independent engineers and auditors for ensuring quality, impartial standard checks, impartial certification of accounts etc. One of the most common form of contracts used to undertake construction works by private developers are Engineering, Procurement and Construction contracts (EPCs), under which a contractor is obliged to deliver all project facilities to the private developer. On the other hand, the private players are responsible for providing project sites free of encumbrances to these contractors. Yet another important player in the arena are insurance companies. It is the duty of the private developers to procure appropriate insurance cover during construction to cover contractors.
On a reading of the above, it is not difficult to understand how important it is for each of the stakeholders to ensure that they fulfil their part of the bargain. Poor contractual enforcement is a prime contributor to India’s infrastructure bottleneck which is a primary constraint to improving its global competitiveness. It also carries the risks of spiking logistical costs and dissuading potential investors from entering the industry making the completion of a project not only slow but risky and unpredictable. For a country like India, private sector investments are expected to drive the improvement in public infrastructure unlike China, where infrastructure is largely state-funded. Therefore, it becomes even more crucial to ensure that the chain of contractual linkages is well-oiled and each player plays its role properly so as to not impede enforcement of contracts which remains a huge hurdle.
India needs resolute commitment to infrastructure development, and in our opinion, that will require flexible policies and the ability to manage timely execution on an unprecedented scale. Otherwise, the private sector will be left to grapple with risks that it has been unable to manage or price appropriately in the past.
Delay in Clearances and Implementation
The major bottlenecks in completion of infrastructure projects are delays in land acquisition, clearances, delays in execution by contractors, litigation etc. In India, specifically, litigation is considered as the main cause of delay in completion of infrastructure projects. Besides litigation, there are considerable delays in payment to contractors, which prolongs the completion of the project and hinders timely delivery to private developers. The segments which have witnessed the maximum project delays are railways and hydropower, whereas National Highways have done relatively better. Railway projects face more delays because of delay in acquiring land. The roads sector however fares comparatively better because of certain steps taken, such as awarding projects only after acquisition of majority of land and once substantial right of way is available for National Highway projects.[iv]
There exist inherent issues in terms of getting timely approvals from central and state governments, like environment clearances, acquisition of land, availability of adequate and skilled manpower (as the sector is both labour and capital intensive). Further, improper and late availability of raw materials, many a times leads to delay in project implementation or completion. This is also reflective into the high % of Gross NPA as compared to total advanced of banks. Although the sector holds plenty of opportunities for banks to grant credit, it has had a Gross NPA of 13.1% of total advances as of March 2020, positively declining from peak of 22.6% in March 2018 though it still remains very high. The issues in terms of delays on different works stand very high and may see further increase in the wake of the Covid-19 pandemic. Power, infrastructure, and steel sectors together constitute about half of INR 4.1 lakh crore worth stressed assets. Power sector accounts for the largest proportion of the bad loans wherein RBI’s revised stressed asset framework is expected to benefit the stressed power sector assets that were operational and on the verge of being referred to insolvency proceedings under IBC. [v]
Conclusion and Suggestions
There is renewed focus for the players in the industry to fast-track under-construction projects as the economy seeks to revive itself in the era of the pandemic. The extended focus on the sector is likely to bode well wherein the Government of India plans to spend about US$ 1.4 trillion worth of investment across infrastructure to achieve GDP of US$ 5 trillion by 2024-25. In 2021, roughly Rs. 1,950,397 crore will be invested through National Infrastructure Pipeline. Huge investments across all sectors of infrastructure is likely to create fresh opportunities for stakeholders. With the prospect of these changes, a few suggestions which are likely to catalyse the growth of the industry and financing in the industry have been given below:
1. Capital Markets must try and focus on infrastructure financing for the various advantages it can offer. Most importantly, it offers liquidity of equity capital and debt which opens doors for the investors or lenders with short-term horizons, as often the long holding tenure discourages such investors. Additionally, stock exchanges provide a platform for transparent trading while imparting liquidity to all forms of capital.
2. The latest financial budget for the 2020-21 financial year announced certain tax exemptions for sovereign wealth funds. Similar investment incentives can be extended to various other investors to make investing a lot more lucrative. Such lucrative incentives not only decrease the cost of the project but also benefit lenders’ investment amount thus, increasing their lending capacity.
3. Setting up of Infrastructure Debt Funds (IDFs) and reduction in ‘withholding tax’ on the interest paid on these bonds are some other positive measures that are expected to facilitate the flow of long-term debt into infrastructure projects.
4. In order for investing to become rewarding, it is important to clear out the major bottleneck in the form of land acquisition. It is imperative that state governments shall issue guidelines for the establishment and implementation of authorities to whom the appeal to Collectors’ awards lie for land acquisition under the Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act). Legal reforms must be supplemented by administrative and bureaucratic reforms as legal reforms by themselves are not a sufficient precondition for ensuring greater equity and efficiency within the land acquisition process. In the absence of administrative and bureaucratic reforms, the LARR Act will not succeed in eliminating inequities and inefficiencies embedded within the implementation of existing land acquisition procedures. Therefore, it is important for these to be supplemented by administrative reforms like building of state capacity to meaningfully comply with the increased procedural requirements stipulated by the LARR Act, and designing institutional structures that incentivize such compliance with the rule of law.
5. An efficient system of dispute resolution is another key impediment as far as investing in the sector is concerned. A quasi-judicial body can be formed whose function shall possess statutory right to resolve disputes between authorities and project developers or any dispute regarding infrastructure sectors.
6. A single window clearance mechanism to obtain all the required NOCs can effectively and efficiently improve the process of seeking clearances. It can in turn reduce the time and cost overruns drastically. Upon CREDAI’s recommendation, Tamil Nadu Government in 2020 launched a Single Window facilitation mechanism to procure statutory pre-project clearances from different Tamil Nadu authorities from a single window. Similar helpful action shall be taken by other states to avoid procedural delays in a project’s life cycle. A transparent tracking system can also be put in place to ensure fair disposal of clearance and approval mandate, which could motivate the project developers to avoid any delay on their end either due to fear or incentive. Moreover, a Performance Review Unit should be formed and be authorized with the power to keep a track of clearances and incentives by periodically extracting information from nodal agencies.
7. The involvement of private enterprises to form private-public partnership has yielded exemplary results in the past in various infrastructure sectors including aviation and telecommunication. India must promote greater PPP projects and simultaneously beware of the consequences of the contracts to avoid any public opposition or agitation.
8. To curb the practice of arbitrarily blacklisting of companies, an express law shall be made which shall lay down guidelines and the procedure to be followed by the government while blacklisting.
Keeping the above suggestions in mind it is well understood that the infrastructure industry has been going at great knots. However, a few amendments and improvements in addressing the key roadblocks to investment are likely to go a long way in pushing India’s competitiveness with other leading economies. Despite the theoretic ideal match between enormous source of capital and necessity of investment, infrastructure investment has been insufficient to make up the financing gap. There is a need for market and investor-driven initiatives rather than over reliance on state-driven initiatives. Therefore, it becomes important for the government to keep pace and be flexible with its approach to support infrastructure financing. Financial markets and intermediaries need to innovate to attract larger funds in response to demand and supply.
About the Author
Mr. P.C. Sinha is the Director of PCS Integrated Services Pvt. Ltd.
Utkarsh Tyagi is a 4th Year Law Student at Symbiosis International University, Noida. He is also an Associate Editor at the Indian Journal of Projects, Infrastructure and Energy Law (IJPIEL).
Managing Editor: Naman Anand
Editors-in-Chief: Akanksha Goel & Aakaansha Arya
Senior Editor: Kanak Mishra
Associate Editor: Utkarsh Tyagi
Junior Editor: Janvi Johar
Preferred Method of Citation
P.C. Sinha and Utkarsh Tyagi, “Opportunities & Impediments of using Technical Advancements in Infrastructural Industries in India in the Present Scenario” (IJPIEL, 08 June 2021)
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 Reena Agrawal, Review of Infrastructure Development and its Financing in India, 24 Sage Journals, 109-126 (2020) https://doi.org/10.1177/0971890720914096.
 Allisa Rumreich, Facts About Advancements in Agriculture in India, The Borgen Project, (Aug. 08, 2018) https://borgenproject.org/agriculture-in-india/.
 Seraphina D’souza, Why the delay in infrastructure projects?: A detailed study, CW Construction World, (Mar. 12, 2020, 2:03 PM), https://www.constructionworld.in/transport-infrastructure/highways-and-roads-infrastructure/why-the-delay-in-infrastructure-projects-a-detailed-study/.
 Infrastructure Sector in India: An Analysis, Telivisory, (Aug. 31, 2020, 11: 31 AM), https://www.televisory.com/blogs/-/blogs/infrastructure-sector-in-india-an-analysis.