Category: Burning Issues

Our mythology is replete with instances of warrior women who were revered, worshipped like the `Shakti’, consort of Shiva the Destroyer, mother of all warriors, and who manifested herself as Durga the warrior goddess, to fight and destroy evil. The Greek Goddess Athena, the Roman Diana, the Nordic Valkyries and the Amazons are cases in point.

However, the induction of women in armed forces is the matter of debate today.

India’s women in uniform: A timeline

• In 1888, the role of women in the Indian army began when the “Indian Military Nursing Service” was formed during the British Raj.
• During 1914-45, British Indian Army nurses fought in World War I (1914–18) and World War II (1939-45), where 350 nurses either died or were taken prisoner of war or declared missing in action.
• Today, all wings of the Indian Armed Forces allow women in combat roles (junior ranks) and combat supervisory roles (officers), except Indian Army (support roles only) and Special Forces of India (trainer role only) (c. 2017).
• Since 1993, the government has progressively opened up the three services for WOs in selected branches.

A timeline of women’s inductions into the military –

Year	Service	Branches that opened up for women
1991	Navy	Education, Logistics and Law Cadre of Executive Branch
1992	Army	Army Service Corps, Army Ordnance Corps, Army Education Corps, Judge Advocate General Branch
1993	Navy	Air Traffic Controller
1994	Air Force	Transport and helicopter pilots
1996	Army	Engineers, Signals, Intelligence, Electrical and Mechanical Engineering branches opened up for women.
2001	Navy	Naval Constructor Cadre of Engineering Branch
2008	Army	Women became eligible for Permanent Commission in Army Education Corps and Judge Advocate General Department
2008	Navy	Observers
2015	Air Force	Fighter pilots

 

Present context

• Recently, the Supreme Court upheld the right of serving Short Service Commission (SSC) women officers of the Navy to be granted Permanent Commission (PC) on a par with their male counterparts.
• The judgment was based on a case filed by 17 women SSC officers who were denied PC and discharged despite completing 14 years of service as SSC officers.
• Another bench of the court led by Justice DY Chandrachud had earlier declared that women would be eligible for permanent commission in select army cadres too.

Background

• On February 17, the Supreme Court of India passed a ruling that will enable women to serve as army commanders.
• The court also extended permanent service – which has only applied to men so far – to all women officers.
• Following the court’s ruling, women will now be allowed to command entire military units. However, they will still not be permitted to serve in army combat units, like the infantry or artillery corps.

What did the Court say?

• The Court has directed that SSC women officers found suitable for the grant of PC shall be entitled to all consequential benefits, including arrears of pay, promotions and retirement benefits as and when due.
• All serving women SSC officers in at least seven wings, including the executive, engineering, electrical, education, law and logistics, will be eligible to apply.
• The grant of PCs will be subject to: (i) availability of vacancies in the stabilized cadre; (ii) Suitability of the candidate; and (iii) recommendation by the chief of Naval Staff.
• The bench did not though extend the benefit of its ruling to those SSC officers who have since retired, instead granting them pensionary benefits and compensation of`25 lakh to some for loss of the opportunity.

Significance of the move

• The court ruled that women naval officers cannot be denied the right to equal opportunity and dignity entitled to under the Constitution on specious grounds such as physiology, motherhood and physical attributes.
• The battle for gender equality is about confronting the battles of the mind.
• History is replete with examples where women have been denied their just entitlements under law and the right to fair and equal treatment in the workplace.

What did opponents say?

• The Judgment frowned on submissions by the government law officer that certain avenues such as sea-sailing duties were ill-suited for women officers as there is no return to the base, unlike in the Army and the Air Force.
• The law officer had claimed that in vessels of a Russian origin no provision has been made for women as sailors and there are no bathrooms to accommodate them.
• It also made the incredulous argument that women should not be appointed to top roles such as colonels or brigadiers, because most soldiers are men from rural backgrounds who are not “mentally schooled to accept women officers in command.

Permanent Commission (PC) Vs. Short Service Commission (SSC)

• A SSC means an officer’s career will be of a limited period in the Indian Armed Forces whereas a PC means they shall continue to serve in the Indian Armed Forces, till they retire.
• The officers inducted through the SSC usually serve for a period of 14 years. At the end of 10 years, the officers have three options.
• A PC entitles an officer to serve in the Navy till he/she retires unlike SSC, which is currently for 10 years and can be extended by four more years, or a total of 14 years.
• They can either elect for a PC or opt-out or have the option of a 4-years extension. They can resign at any time during this period of 4 years extension.

 

Women in Uniform: A global scan

India has limited experience as regards the induction of women in the armed forces. The first batch had joined in 1992. Therefore, our knowledge of the complexities and long-term effects of the issues involved is highly limited.

On the other hand, women have been serving in the militaries of developed countries for a long time. These countries have acquired a deep understanding of all the issues involved.

Let’s have a look:

United States

• The United States is considered a pioneer and a trend-setter as regards induction of women in the services.
• There are approximately 200,000 American women on active duty in the US armed forces. They constitute nearly 20 percent of its strength.
• Women are also participating in Iraq operations in large numbers, albeit in support functions as they are forbidden to be placed in direct ground combat with enemy. They, however, are assigned ‘combat support’ duties on voluntary basis.
• Prior to November 1975, if women became pregnant, they were given the option to terminate pregnancy or seek discharge.
• A number of important steps were initiated during President Clinton’s time. Women were permitted to join as combat aircraft pilots and could also be assigned for prolonged duty on combat naval ships. The scope of combat-risk assignments for women was redefined to open additional appointments to them.

Israel

• Though Israel has conscription for women (as well as men), a large number of them are exempted for various reasons.
• Women are generally not allotted active battle field duties. They serve in many technical and administrative posts to release men for active duty.
• Although they make excellent instructors as well, most women occupy lower and middle level appointments. Only a handful reaches senior ranks.

Other Countries

• In the Australian Army, women are still not allowed in the field/battle. In Russia, women generally serve in nursing, communications and logistic support functions.
• Like all Islamic states, Pakistan does not permit women in the armed forces. It is feared that women would create distraction and cause disruption of internal order.
• There is also a great deal of concern for the safety of women from the organisational environment itself.

Why males have ever dominated the armed forces?

• Militaries across the world help entrench hegemonic masculine notions of aggressiveness, strength and heterosexual prowess in and outside their barracks.
• The military training focuses on creating new bonds of brotherhood and camaraderie between them based on militarised masculinity.
• This temperament is considered in order to enable conscripts to survive the tough conditions of military life and to be able to kill without guilt.
• To create these new bonds, militaries construct a racial, sexual, gendered “other”, attributes of whom the soldier must routinely and emphatically reject.

Dimensions of the Issue

Indeed, the court’s strong statements against the gender stereotypes employed by the government come as a welcome relief. Equally, ensuring that women can hold permanent commissions in the army recognises the equal effort and service that they put in.

• Gender is not a hindrance: As long as an applicant is qualified for a position, one’s gender is arbitrary. It is easy to recruit and deploy women who are in better shape than many men sent into combat.
• Military Readiness: Allowing a mixed-gender force keeps the military strong. The armed forces are severely troubled by falling retention and recruitment rates. This can be addressed by allowing women in the combat role.
• Effectiveness: The blanket restriction for women limits the ability of commanders in theatre to pick the most capable person for the job.
• Tradition: Training will be required to facilitate the integration of women into combat units. Cultures change over time and the masculine subculture can evolve too.
• Cultural Differences & Demographics: Women are more effective in some circumstances than men. Allowing women to serve doubles the talent pool for delicate and sensitive jobs that require interpersonal skills, not every soldier has.

The road is not so simple

Capabilities of women

• The Centre states that although women are equally capable, if not more capable than men, there might be situations that could affect the capabilities of women such as absence during pregnancy and catering to the responsibilities of motherhood, etc. 
• The arguments are presented on the basis that a role in combat would require tough training, whereas the current training for women is different and at a much lower level than that of their male counterparts.
• However, Lieutenant Colonel Mitali Madhumita and IAF squad leader Minty Agarwal are examples of women who stand as a testament to the capabilities of women in commanding positions.

Adjusting with the masculine setup

• To then simply add women to this existing patriarchal setup, without challenging the notions of masculinity, can hardly be seen as “gender advancement”.
• In fact, in order to succeed within the army, women are forced to deride their femininity and work harder than men to establish parity in the eyes of their counterparts.
• They are forced to blend in while standing out for their exceptional work in order to be taken seriously.

Fear of sexual misconduct

• This superficial approach to gender equality defines parity solely based on the opportunity to participate hence fails to address several fallouts most notable of which is sexual harassment and abuse.
• Sexual harassment faced by women military officers is a global phenomenon which remains largely unaddressed, and women often face retaliation when they do complain.
• Extensive and rigorous data on the pervasiveness of sexual harassment in the Indian armed forces is not available.
• However, a relatively small 2015 study, which questioned 450 members of the armed forces on sexual discrimination in their workplace, found that sexual harassment is rampant in the military.

Gender progressiveness could be an illusion

• In reality, there are several factors behind the decision to include women in the forces, including using the illusion of gender progressiveness within the army to shame populations for their gender inequities, brand them as backwards and use this to justify military control.
• Women’s inclusion is criticized as just another manoeuvre to camouflage women’s subjugation and service as women’s liberation.

Battle of ‘Acceptance’

• The only way to command is to show the lower ranks that the orders are fair and just, both in spirit and action.
• Acceptance of women in the military has not been smooth in any country. Every country has to contend with sceptics who consider it to be a counterproductive programme.
• They tend to view it as a political gimmick to flaunt sexual equality, or, at best, a necessary liability.
• Additionally, every country has to mould the attitude of its society at large and male soldiers in particular to enhance acceptability of women in the military.
• For trained soldiers “acceptance” is not an option; they have undergone rigorous regimentation to accept orders from the command.

Job Satisfaction

• Most women feel that their competence is not given due recognition. Seniors tend to be over-indulgent without valuing their views.
• They are generally marginalised and not involved in any major decision-making. They have to work twice as hard as men to prove their worth. Additionally, a woman is always under scrutiny for even minor slip-ups.
• Many women complain that despite their technical qualifications, they are generally detailed for perceived women-like jobs. Either they get routine desk work or are asked to perform duties related to social minutiae.

Doubts about Role Definition

• The profession of arms is all about violence and brutality. To kill another human is not moral but soldiers are trained to kill.
• They tend to acquire a streak of raw ruthlessness and coarseness. This makes the environment highly non-conducive and rough for women.
• Women, in general, are confused about the way they should conduct themselves. If they behave lady-like, their acceptance amongst male colleagues is low.
• On the other hand, their active participation in casual repartee carries the danger of their losing colleagues’ respect.

Societal Impact

• The government has argued that if a woman is taken captive by insurgents/terrorists or as a Prisoner of War (PoW) by an enemy state, then it would become an international and deeply emotive issue which could have an impact on the society.
• However, times have changed and this cannot be a valid reason for denying command roles and permanent commission to women.

Physical and Physiological Issues

• The natural physical differences in stature, strength, and body composition between the sexes make women more vulnerable to certain types of injuries and medical problems.
• The vigorous training might also have an effect on the health of women officers.
• The natural processes of menstruation and pregnancy make women particularly vulnerable in combat situations.
• Such positions usually leave the commanding officer with no privacy and during adverse situations, the lack of sanitation can have an impact on their health.

Comfort Level

• Most women accepted the fact that their presence amongst males tends to make the environment ‘formal and stiff’.
• The mutual comfort level between men and women colleagues is often very low.
• Men miss their light-hearted banter which is considered essential to release work tensions and promote group cohesion. They consider women to be intruding on their privacy.

Whose concern is National Security…….

Many defence analysts are disgusted with the ongoing emulsive debate incorporating issues of national security with gender justice. Few of their opinion are discussed as under:

• The recent debate about the entry of women officers in the armed forces has been highly ill- informed and subjective in nature.
• People have taken stands and expressed opinion without analysing the matter in its entirety. It is imprudent to consider it as an issue of equality of sexes or gender bias or even women’s liberation.
• It is also not a question of conquering the so-called ‘last male bastion’.
• That would amount to trifling a matter that concerns the well-being and the war-potential of a nation’s armed forces.
• Armed forces have been constituted with the sole purpose of ensuring defence of the country and all policy decisions should be guided by this overriding factor.
• All matters concerning defence of the country have to be considered in a dispassionate manner.
• No decision should be taken which even remotely affects the cohesiveness and efficiency of the military. Concern for equality of sexes or political expediency should not influence defence policies.

Conclusion

While ensuring that women get their rightful place to serve in the armed forces before introducing any measure to improve gender equity, it should not weaken the fighting capabilities of the sword arms of national security. That is the bottom line.

• Our armed forces should undertake an exercise to determine physical fitness standards required for meeting the minimum operational standards (MOS) required for each arm.
• It should recruit persons meeting the MOS, regardless of gender.
• This time-consuming exercise should be undertaken with political and organisational support of the government and the services if they seriously want to lift existing restrictions on women’s entry in all branches of the armed forces.
• Induction of women into combat positions should be on the basis of their abilities and not on the basis of their gender.
• The training for both women and men should be standardized to eliminate differentiation based on physical capabilities.

Way Forward

 

Defence readiness is one major aspect which is required to be borne in mind throughout while considering their employability options. The career aspects and opportunities for women need to be viewed holistically keeping the final aim in focus.

• Misleading information such as using the patriarchal nature of the society as an excuse to deny women their deserving opportunities should be stopped. India has come a long way, and society should be supportive of women being inducted in to combat roles. 
• So far combatant roles are concerned, an all-women combat squadron should be designed and studied extensively before any further development or decisions are made.
• The training provided to men and women should be similar to eliminate differentiation on the basis of physical standards.
• It is the responsibility of the Government to create both administrative and social infrastructure for the easy induction of women into the Armed Forces. Administrative issues should not be cited as a barrier to women’s entry in the Armed Forces.
• The framework for the induction of women should be incorporated into a policy. As for the concern of preserving the female officers’ modesty and dignity, there should be elaborate codes of conduct to ensure no adverse incident occurs.

Finally, no decision should be taken which even remotely affects the cohesiveness and efficiency of the military. Concern for equality of sexes or political expediency should not influence defence policies.

 

 

 

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References

https://www.aljazeera.com/indepth/opinion/equal-roles-women-indian-army-feminist-victory-200303152707759.html

http://www.indiandefencereview.com/interviews/women-in-the-armed-forces/

https://economictimes.indiatimes.com/news/defence/after-army-supreme-court-grants-permanent-commission-to-women-officers-in-navy/articleshow/74667440.cms

https://www.indialegallive.com/top-news-of-the-day/news/women-commanders-armed-forces-walking-tightrope-88805

 https://www.livemint.com/news/india/shooting-down-the-ceiling-women-in-the-army-11582127889314.html

 

 

 

Land acquisition in India refers to the process by which the union or a state government in India acquires private land for the purpose of industrialization, development of infrastructural facilities or urbanization of the private land, and provides compensation to the affected landowners and their rehabilitation and resettlement.

Land acquisition is governed by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR) and which came into force from 1 January 2014.

Till 2013, land acquisition in India was governed by the Land Acquisition Act of 1894.

Context

• The Supreme Court reaffirmed its February 2018 ruling on Section 24 on land acquisition compensation awards given by a three-judge bench led by Justice Arun Mishra in the Indore Development Authority.
• It also has overruled an earlier co-ordinate Bench ruling in the Pune Municipal Corporation case of 2014 under the Right to Fair Compensation and Transparency in the Act of 2013.

Land Acquisition, Rehabilitation and Resettlement Act

• The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act was promulgated in 2013.
• It replaced the Land Acquisition Act, 1894, a nearly 120-year-old law enacted during British rule.
• It regulates the land acquisition and lays down the procedure and rules for granting compensation, rehabilitation, and resettlement to the affected persons in India.
• It has provisions to provide fair compensation to those whose land is taken away, brings transparency to the process of acquisition of land to set up factories or buildings, infrastructural projects and assures rehabilitation of those affected.
• It establishes regulations for land acquisition as a part of India’s massive industrialization drive driven by public-private partnerships.

Scope of the Act

• The Act aims to establish the law on land acquisition, as well as the rehabilitation and resettlement of those directly affected by the land acquisition in India.
• The scope of the Act includes all land acquisition whether it is done by the Central Government of India, or any State Government of India, except the erstwhile state of Jammu & Kashmir.

The Act is applicable when:

1. Government acquires land for its own use, hold, and control, including land for Public sector undertakings.
2. Government acquires land with the ultimate purpose to transfer it for the use of private companies for stated public purposes. The purpose of LARR 2011 includes public-private-partnership projects but excludes land acquired for state or national highway projects.
3. Government acquires land for immediate and declared use by private companies for public purposes.

• The provisions of the Act do not apply to acquisitions under 16 existing legislations including the Special Economic Zones Act, 2005, the Atomic Energy Act, 1962, the Railways Act, 1989, etc.

 

Criticisms of the Act

• Some criticize the Act citing that it is heavily loaded in favor of landowners and ignores the needs of poor Indians.
• It attaches an arbitrary mark-up to the historical market price to determine compensation amounts, along with its numerous entitlements to a potentially unlimited number of claimants. This according to them shall guarantee neither social justice nor the efficient use of resources.
• LARR proposed mandates that compensation and rehabilitation payments to landowners and livelihood losers be upfront. This misaligns the interests of the land acquirer and those affected. Once the payment is made, one or more of the affected families may seek to delay the progress of the project to extract additional compensation, thereby adversely affecting those who chose long term employment in the affected families.
• The Act fails to adequately define “public purpose”.The current definition, he claims, can be interpreted vaguely. In leaving public purpose too vague and porous, it would ensure that land acquisition will remain hostage to politics and all kinds of disputes.
• The Act inflates the cost of land to help a small minority of Indians at the cost of the vast majority of Indian citizens, as less than 10% of the Indian population owns rural or urban land.

What was the provision under consideration and why it needed interpretation?

• The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act 2013 (2013 Act) replaced the Land Acquisition Act, 1894 (1894 Act).
• The new Act provides for higher compensation to those deprived of land by the government for both public and private sector projects.
• It also mandates the consent of a majority of land-owners and contains provisions for rehabilitation and resettlement.
• Under Section 24(2) land acquisition made under the old law of 1894 lapses if the award of compensation had been made five years before the new Act came into force, but has not been paid.
• In such cases, the process will have to be gone through afresh under the new Act, which mandates higher compensation.

Issue over compensation

• There are cases in which farmers and other land-owners have refused the compensation, leading to delay in the government taking possession.
• In this situation, the compensation amount is deposited in the government treasury. According to one interpretation, if this is done, the acquisition process is saved.
• Then again, others contend that such cases will fall under the new Act because compensation has not been paid to the land-owners, and the lapsing clause in Section 24 should be applied.
• If through interpretation, a long-pending land acquisition process is closed under the old law and fresh acquisition proceedings started under the new one, the land-owners stand to benefit, but project proponents will have to pay higher compensation.
• Therefore, the provision concerned is often a subject of litigation.

What happened in the case before the Supreme Court?

• On January 24, 2014, the court ruled that the acquisition of a piece of land had “lapsed” because the compensation awarded had neither been paid to the landowners/persons interested nor deposited in the court.
• The deposit of the compensation amount in the government treasury was held to be “of no avail” as it was not equivalent to the compensation being “paid”.
• Based on this judgment, subsequent cases were decided on the same principle: acquisition that had taken place earlier than five years before the new Act commenced would lapse if compensation amount was not paid to the land-owners or, in cases in which the owners refused to accept compensation, deposited in court.

How was this precedent dealt with in another case in 2018?

• The same question arose in the Indore Development Authority vs. Shailendra. Another Bench did not accept the earlier Bench’s view.
• On February 8, 2018, the majority, consisting of the first two judges, ruled that the acquisition would not lapse merely because the compensation amount was not deposited in court, but was instead deposited in the treasury.
• It ruled that the past practice of more than a century, under which the amount was deposited in the treasury, was not taken into account by the earlier Bench.
• Some provisions and orders that allowed this practice was not placed before that Bench. Further, the land acquisition in that particular case had been quashed by a High Court in 2008.
• Since it was not a subsisting process, the question under Section 24(2), whether the acquisition lapsed because of non-payment of compensation or non-deposit in the court, did not arise at all.
• On these grounds, Justice Mishra and Justice Goel overruled the earlier judgment and held that it was per incuriam, that is a verdict passed in disregard of law and, therefore, wrong.

What does the controversy mean for land-owners and project proponents?

• A ruling that old acquisitions lapse for non-deposit of compensation will be more beneficial to land-owners and farmers as they stand to get higher compensation and rehabilitation and resettlement measures.
• On the other hand, project proponents feel such an interpretation would mean that those who refused to take compensation, even after it had been fixed and the money deposited in the government treasury, would be taking advantage of their own wrong.

The present ruling by Hon’ble Supreme Court

 

On Acquisition

• The provision said that in such cases if the physical possession has not been taken “or” the compensation is not paid, the acquisition proceeding is “deemed to have lapsed”.
• The court held that a land acquisition proceeding under Section 24(2) would only lapse if the authorities have neither taken physical possession nor paid the compensation due to the landowner for five or more years prior to January 1, 2014.
• For this, an “or” in the Section was “interpreted” as an “and”.
• Further, the Bench held that Section 24(2) of the Act of 2013 does not give rise to a new cause of action to question the legality of concluded proceedings of land acquisition.

On compensation

• The government if it so wishes would have to initiate “fresh acquisition proceedings” under the new Act of 2013 which provides for “fair-compensation”.
• The judgment, however, said compensation would be considered paid if the amount is put in the Treasury.
• There was no obligation that the amount should be deposited in the court in order to sustain the land acquisition proceedings under the 2013 Act.
• Thus there is no lapse if possession has been taken and compensation has not been paid. Similarly, there is no lapse if compensation has been paid and possession not taken of the land.

What can be done to make land acquisition farmer-friendly?

 

Suggesting a new method for determining compensation or mere increment in it can never be a perfect solution for farmers. Pooling in farmers, themselves could chalk out a more feasible solution. One such alternative is holding a land auction.

Land Auction

• Farmers should be asked to submit an asking price at which they are willing to sell their land.
• This includes not only those who own land in the proposed project area but also landowners in the surrounding region.

There are four main advantages to this method.

Reducing state coercion

 First and foremost, it vastly reduces coercion. Existing eminent domain law with several amendments and court ordeals gives the citizen no say at all on any aspect of the transfer.  The state can not only seize your property at will, but it also dictates the price.

Choice of compensation

Second, our proposal effectively gives the farmer further choice in the form of compensation – either cash or land. One of the enduring objections to eminent domain is that for poor, illiterate farmers who lack financial savvy, cash will evaporate but the land will keep feeding forever.

Involving private players

• Third, among all possible ways to eliminate disaffection and resistance, this should place the least financial burden on the government.
• It will encourage owners to ask for whatever their land is truly worth to them. The key to keeping any seller honest is competition.
• The auction makes landowners from the project area compete with those from outside.

Land swapping

• Finally, this method should help to keep agricultural productivity high. It is very likely that some farmers who owned land in the project area are more productive than some outside.
• Ideally, their lands should be swapped, and the less productive farmers should be the ones leaving agriculture for some other occupation (after due compensation).
• The absence of a well-functioning land market in the area can prevent this from happening. The auction will make sure that those who give up land are the ones who value it least – that is, the less productive farmers.

Conclusion

Rhetoric from the radical left sometimes suggests that the very notion of industrialization or development is a conspiracy to rob the poor, that messing up corporate plans or even state infrastructure projects is, in itself, a triumph of justice. This is a destructive philosophy that needs to be challenged.

• From financial crises to land acquisition, whenever the government tries to play a facilitating role for industry, it draws the ire of both the left and the right.
• To those on the right, a nanny state destroys character and breeds dependency.
• To those on the left, any assistance to capitalists is a betrayal of the poor by some sweeping zero-sum logic.

Way Forward  

• The present generation of farmers is destined to toil in an overpopulated agricultural sector blighted by low productivity and low pay.
• If the vision of India includes paved roads, electricity, modern housing, indoor plumbing, functioning schools and equipped hospitals for all of 1.2 billion people, the question must be asked how all this will materialize.
• Unlike the urban intelligentsia who often champion their cause, our millions of farmers lack the human capital needed to play a vital role in the new economy.
• The farmers hold one key to the vault where India’s burgeoning wealth is being stored –his land.
• For our huddled masses, the status quo is no less the enemy than change. What they need is a change in which they can be partners, not victims.

 

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References

https://www.civilsdaily.com/news/supreme-court-upholds-2018-order-on-land-acquisition/

https://www.ideasforindia.in/topics/macroeconomics/land-acquisition-need-for-a-shift-in-discourse.html

 

 

 

• The government has embarked on a mission to amalgamate about 40 labour laws into four Labour Codes with a view to rationalise and simplify the provisions and facilitate ease of compliance.
• The Code on Social Security, 2019 was introduced last year in Lok Sabha by the Minister of State for Labour and Employment.
• It replaces nine laws related to social security, including:

1. Employees’ Provident Fund Act, 1952,
2. Maternity Benefit Act, 1961, and
3. Unorganised Workers’ Social Security Act, 2008

What is Social Security?

 

 

• Social security is “any government system that provides monetary assistance to people with an inadequate or no income”.
• It refers to the action programs of an organization intended:

1. to promote the welfare of the population through assistance measures guaranteeing access to sufficient resources for food and shelter and
2. to promote health and well-being for the population at large and potentially vulnerable segments such as children, the elderly, the sick and the unemployed.

• Services providing social security are often called social services.

Why need Social Security?

• India has a very basic social security system catering to a fairly small percentage of the country’s workforce.
• Traditionally, Indians relied on their extended families for support in the event of illness or other misfortunes.
• However, due to migration, urbanization, and higher social mobility, family bonds are less tight and family units much smaller than they used to be.
• So far, neither the state nor private insurance companies have quite stepped up to fill this gap.

Social Security System in India

• India’s social security system is composed of a number of schemes and programs spread throughout a variety of laws and regulations.
• Keeping in mind, however, that the government-controlled social security system in India applies to only a small portion of the population.
• Furthermore, the social security system in India includes not just an insurance payment of premiums into government funds (like in China), but also lump sum employer obligations.

Generally, India’s social security schemes cover the following types of social insurances:

• Pension
• Health Insurance and Medical Benefit
• Disability Benefit
• Maternity Benefit
• Gratuity

While a great deal of the Indian population is in the unorganized sector and may not have an opportunity to participate in each of these schemes, Indian citizens in the organized sector (which include those employed by foreign investors) and their employers are entitled to coverage under the above schemes.

Its loopholes

• With about 22 percent of India’s population living below the poverty line, the “unorganized” sector, i.e. enterprises — mainly in agriculture, which are not legally covered by any form of social security, is disproportionately large.
• Social Security is more than just a retirement program. It provides important life insurance and disability insurance protection as well.
• Retirement benefits aren’t much progressive to keeps up with increasing cost of living.

 

The Code on Social Security, 2019

 

Need for an unified Law

• Most of the central labour laws were enacted between the 1920s and 1970s. These codes were created in conformity with the requirements of the workers of that period.
• However, things have changed dramatically today.
• Many of the earlier laws have become archaic which has been creating hurdles for the employers to create new employment opportunities.
• Even the workers find it very difficult to get efficient social security benefits on time.
• The current objective of the bill is to cover each and every worker within a robust social security net. At the same time, Bill aims to help employers in creating new jobs.
• Hence, this bill will create an environment for the employers and workers to come together.

The code has 163 clauses, divided into 14 chapters in addition to six schedules on the procedural aspects. It replaces the existing nine laws on social security. They are-

1. Employee’s Compensation Act, 1923;
2. Employee’s State Insurance Act, 1948;
3. Employees’ Provident Funds and Miscellaneous Provisions Act, 1952;
4. Maternity Benefit Act, 1961;
5. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959;
6. Payment of Gratuity Act, 1972;
7. Cine Workers Welfare Fund Act, 1981;
8. Building and Other Construction Workers Cess Act, 1996;
9. Unorganized Workers’ Social Security Act, 2008.

 

Major Highlights of the Code

Wage definition widened

• The definition of wages has three parts to it –

1. an inclusion part,
2. specified exclusions with limits and
3. benefits in kind

• All remuneration expressed in monetary terms is wage and includes basic pay, dearness allowance and retaining allowance.
• Specific exclusions are statutory bonuses, PF, pension and gratuity, house rent and conveyance allowances etc. which cannot exceed 50 per cent of total remuneration.
• Remuneration provided in-kind will be included to the extent of 15 per cent of total wages.
• Overall this will ensure that wages for social security benefits will be at least 50 per cent of overall compensation.

Social security organisations

• The Code provides for the establishment of several bodies to administer the social security schemes.  
• These include:

1. a Central Board of Trustees, headed by the Central Provident Fund Commissioner, to administer the EPF, EPS and EDLI Schemes,
2. an Employees State Insurance Corporation, headed by a Chairperson appointed by the central government, to administer the ESI Scheme,
3. national and state-level Social Security Boards, headed by the central and state Ministers for Labour and Employment, respectively, to administer schemes for unorganised workers, and
4. state-level Building Workers’ Welfare Boards, headed by a Chairperson nominated by the state government, to administer schemes for building workers.

Social security fund

• The Bill proposes setting up a social security fund using corpus available under corporate social responsibility.
• This fund will provide welfare benefits such as a pension, medical cover, death and disablement benefits to all workers, including gig workers.

Reducing employee PF contribution

• The bill provides for an option of reducing provident fund contribution (currently at 12% of basic salary) and therefore increases workers take-home pay.
• The rationale for allowing lower employee PF contribution is that higher take-home pay may boost consumption. The Bill, however, retains employers’ PF contribution at 12%.

Gratuity for fixed-term contract workers

• Currently, workers are not entitled to gratuity before completing five years of continuous service. The bill says that fixed-term contract workers will be eligible for gratuity on a pro-rata basis.
• It proposes to offer gratuity to fixed term employees after one year of service on a pro-rata basis as against the current practice of five years.

Exemption

• It will empower the central government to exempt select establishments from all or any of the provisions of the code and makes Aadhaar mandatory for availing benefits under various social security schemes.

Insurance, PF, life cover for unorganized sector employees:

• Central Government shall formulate and notify suitable welfare schemes for unorganised workers on matter relating to life and disability cover; health and maternity benefits; old age protection; and any other benefit as may be determined by the central government.

Gig Workers

• In addition, the central or state government may notify specific schemes for gig workers, platform workers, and unorganised workers to provide various benefits, such as life and disability cover.
• Gig workers refer to workers outside of the traditional employer-employee relationship (e.g., freelancers). 
• Platform workers are workers who access other organisations or individuals using online platforms and earn money by providing them with specific services. 
• Unorganised workers include home-based and self-employed workers. 

Coverage and registration

• The Code specifies different applicability thresholds for the schemes.  For example, the EPF Scheme will apply to establishments with 20 or more employees. 
• The ESI Scheme will apply to certain establishments with 10 or more employees, and to all establishments which carry out hazardous or life-threatening work notified by the central government.  
• These thresholds may be amended by the central government.  All eligible establishments are required to register under the Code, unless they are already registered under any other labour law. 

Contributions

• The EPF, EPS, EDLI, and ESI Schemes will be financed through a combination of contributions from the employer and employee.  
• For example, in the case of the EPF Scheme, the employer and employee will each make matching contributions of 10% of wages, or such other rate as notified by the government. 
• All contributions towards payment of gratuity, maternity benefit, cess for building workers, and employee compensation will be borne by the employer. 
• Schemes for gig workers, platform workers, and unorganised workers may be financed through a combination of contributions from the employer, employee, and the appropriate government.  

Offences and penalties

The Code specifies penalties for various offences, such as:

• the failure by an employer to pay contributions under the Code after deducting the employee’s share, punishable with imprisonment between one and three years, and fine of one lakh rupees, and
• falsification of reports, punishable with imprisonment of up to six months. 

 

Advantages of the unified Law

The Code is a break from numerous and archaic social security laws. Major promising features of the Code are:

• The social safety-related laws had indeed become outdated in today’s environment. For example, online platform workers such as Ola, Uber etc. were not covered in the previous laws. The Social security code Bill, 2019 covers all those workers.
• The ambit of this social security code is truly large as it covers not only the number of employees which an organization has (if it more than 10, it will come under the social security laws) but the workers involved in hazardous nature of work will be also be covered under the act.
• At the same time, through code on social security, the regulatory regime would be less problematic for the employers and employees. For example, an inspector, under the new code, cannot open an EPFO (Employees’ Provident Fund Organisation) record of more than five years.
• Under the Code, the central government may notify various social security schemes for the benefit of workers. These include an Employees’ Provident Fund (EPF) Scheme, an Employees’ Pension Scheme (EPS), and an Employees’ Deposit Linked Insurance (EDLI) Scheme.

Criticisms

• There is no uniform definition of “social security”, nor is there a central fund. The corpus is proposed to be split into numerous small funds creating a multiplicity of authorities and confusion.
• It is not clear how the proposed dismantling of the existing and functional structures, such as the Employees’ Provident Fund Organisation (EPFO) with its corpus of ₹10 lakh crore — which will be handed over to a government-appointed central board — is a better alternative.
• Crucial categories such as “workers”; “wages”; “principal-agent” in a contractual situation; and “organised-unorganised” sectors have not been clearly defined.
• This will continue to impede the extension of key social security benefits such as PF, gratuity, maternity benefits, and healthcare to all sections of workers.
• The Bill welcomes aboard large sections of the workforce — “gig workers” such as those working in taxi aggregate companies like Uber and Ola.
• But how exactly the government proposes to facilitate their access to PF or medical care is not clear.

Conclusion

Social Security protects people against a variety of risks to ensure them a basic floor of income in old age and to enable many people who have struggled all their lives to look forward to a decent standard of comfort and dignity when they retire.

• Though it needs to be passed in the parliament, the Code on Social Security, 2019 is a robust arrangement to effect economy, efficiency, and effectiveness in the working of the social security regime.
• The inclusion of unorganised sector is a welcome step as the economy right now is service sector dominated.
• Further positive changes too must be looked forward as they are in the long run are helpful to the wide sections.

Way Forward

• The Code on Social Security is clearly a move in the right direction to rationalise and consolidate social security related labour laws.
• It is critical for employers to analyse the impact of the Code and the compliances thereunder in order to be able to undertake a smooth transition as and when the Code becomes a law.
• The code is giving a robust and efficient coverage of social security to each and every worker of the country.
• The code gives lot of respite to the employer from the rigidity of laws and whims and wishes from the law enforcement agencies.
• This code takes the labour reforms from the manufacturing sector space to the services sector and this transition will cater to the large section of workers contributing to the share of GDP.

 

 

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References

https://prsindia.org/billtrack/code-social-security-2019

https://www.india-briefing.com/news/introduction-social-security-system-india-6014.html/

https://vikaspedia.in/social-welfare/social-security?pid=3833&pageno=2&size=10

https://www.businesstoday.in/opinion/columns/social-security-bill-code-on-social-security-2019-employees-gratuity-protect-epf-dues/story/396102.html

The fragile peace deal between the United States and the Taliban appeared to hang in the balance as the U.S. Defense Department announced its first airstrike against Taliban forces in 11 days and bitter disagreements between the radical Islamist movement and the Afghan government, as well as internal divisions in Kabul, threatened to nullify the pact.

Context

• The deal signed between the U.S. and the Taliban sets the stage for America to wind down the longest war in its history.
• It went into Afghanistan in October 2001, a few weeks after the 9/11 terror attacks, with the goals of defeating terrorists and rebuilding and stabilising the central Asian country.
• Almost 19 years later, the U.S. seeks to exit Afghanistan with assurances from the Taliban that the insurgents will not allow Afghan soil to be used by transnational terrorist groups such as al-Qaeda and that they would engage the Kabul government directly to find a lasting solution to the civil war.

 

Why did the US quit?

• America’s desperation is understandable.
• The Afghan war is estimated to have cost $2-trillion, with more than 3,500 American and coalition soldiers killed. Afghanistan lost hundreds of thousands of people, both civilians and soldiers.
• After all these, the Taliban is at its strongest moment since the U.S. launched the war.
• The insurgents control or contest the government control in half of the country, mainly in its hinterlands.
• The war had entered into a stalemate long ago and the U.S. failed to turn it around despite both Presidents Barack Obama and Donald Trump having sent additional troops.

Background of The Taliban

The Taliban ( literally meaning “students”) or Taleban, who refer to themselves as the Islamic Emirate of Afghanistan (IEA) are a Sunni Islamic fundamentalist political movement and military organization in Afghanistan currently waging war (an insurgency, or jihad) within that country.

Its Birth

• After the Soviet Union intervened and occupied Afghanistan in 1979, Islamic mujahideen fighters engaged in war with those Soviet forces.
• A while later, the US CIA and the Saudi General Intelligence Directorate (GID) funnelled funding and equipment through the Pakistani Inter-Service Intelligence Agency (ISI) to the Afghan mujahideen
• About 90,000 Afghans, including  several bountied terrorists were trained by Pakistan’s ISI during the 1980s.
• Hence it can be concluded that the Taliban have arisen from those US-Saudi-Pakistan-supported mujahideen: The West helped the Taliban to fight the Soviet takeover of Afghanistan.

Its ideology

• Early Taliban were motivated by the suffering among the Afghan people, which they believed resulted from power struggles between Afghan groups not adhering to the moral code of Islam; in their religious schools they had been taught a belief in strict Islamic law.
• The military ambitions of the afghans led to its the infamous civil war from 1992-96 which ultimately demanded a political emirate.

9-11

• The United States invasion of Afghanistan occurred after the September 11 attacks in late 2001 and was supported by close US allies.
• Its public aims were to dismantle al-Qaeda and deny it a safe base of operations in Afghanistan by removing the Taliban from power.
• US President George W. Bush demanded that the Taliban hand over Osama bin Laden and expel al-Qaeda; bin Laden had already been wanted by the FBI since 1998.
• The Taliban declined to extradite him unless given what they deemed convincing evidence of his involvement in the 9/11 attacks and ignored demands to shut down terrorist bases and hand over other terrorist suspects apart from bin Laden.
• The US demand was dismissed by the Taliban with meaningless delaying tactics. Disgusted with it, the US launched Operation Enduring Freedom on October 7, 2001.

India and the Taliban

• India and the Taliban have had a bitter past.
• New Delhi nurses bitter memories from the IC-814 hijack in 1999, when it had to release terrorists — including Masood Azhar who founded Jaish-e-Mohammed that went on to carry out terror attacks as such on Parliament, Pathankot and in Pulwama.
• Quite predictably, Mullah Baradar did not name India among the countries that supported the peace process, but specially thanked Pakistan for the “support, work and assistance” provided.
• The Taliban perceived India as a hostile country, as India had supported the anti-Taliban force Northern Alliance in the 1990s.
• India never gave diplomatic and official recognition to the Taliban when it was in power during 1996-2001.
• But its foreign policy establishment has shied away from engaging with the Taliban directly.

The deal

• The US and Taliban signed an agreement for “Bringing Peace to Afghanistan”, which will enable the US and NATO to withdraw troops in the next 14 months.
• The pact is between the Islamic Emirate of Afghanistan (which is not recognized by the United States as a state and is known as the Taliban) and the US.
• The four-page pact was signed between Zalmay Khalilzad, US Special Representative for Afghanistan Reconciliation, and Mullah Abdul Ghani Baradar, political head of the Taliban.

Key elements of the deal

Troops Withdrawal

• The US will draw down to 8,600 troops in 135 days and the NATO or coalition troop numbers will also be brought down, proportionately and simultaneously.
• And all troops will be out within 14 months — “all” would include “non-diplomatic civilian personnel” (could be interpreted to mean “intelligence” personnel).

Taliban Commitment

• The main counter-terrorism commitment by the Taliban is that “It will not allow any of its members, other individuals or groups, including al-Qaeda, to use the soil of Afghanistan to threaten the security of the US and its allies”.
• While Miller said the reference to al-Qaeda is important, the pact is silent on other terrorist groups — such as anti-India groups Lashkar-e-Toiba or Jaish-e-Mohammed.
• Again, India, not being an US ally, is not covered under this pact.

Sanctions Removal

• UN sanctions on Taliban leaders to be removed by three months (by May 29) and US sanctions by August 27.
• The sanctions will be out before much progress is expected in the intra-Afghan dialogue.

Prisoner’s release

• This is a possible trouble spot because the US-Taliban agreement and the joint declaration differ, and it is not clear whether the Ashraf Ghani-led government is on board with this big up-front concession to Taliban.
• The joint declaration says the US will facilitate discussion with Taliban representatives on confidence building measures, to include determining the feasibility of releasing significant numbers of prisoners on both sides.
• While there are no numbers or deadlines in the joint declaration, the US-Taliban pact says up to 5,000 imprisoned Taliban and up to 1,000 prisoners from “the other side” held by Taliban “will be released” by March.
• The intra-Afghan negotiations are supposed to start in Oslo.

Ceasefire

• This is identified as another potential “trouble spot”.
• The agreement states ceasefire will be simply “an item on the agenda” when intra-Afghan talks start, and indicate actual ceasefire will come with the “completion” of an Afghan political agreement.

Implications of the Deal: An analysis

 

Faced with no other way, the U.S. just wanted to leave Afghanistan. But the problem is with the way it is getting out.

A bad deal indeed

• The fundamental issue with the U.S.’s Taliban engagement is that it deliberately excluded the Afghan government because the insurgents do not see the government as legitimate rulers.
• By giving in to the Taliban’s demand, the U.S. has practically called into question the legitimacy of the government it backs.
• Second, the U.S. has made several concessions to the Taliban in the agreement. The Taliban was not pressed enough to declare a ceasefire. Both sides settled for a seven-day “reduction of violence” period before signing the deal.
• The U.S., with some 14,000 troops in Afghanistan, has committed to pull them out in a phased manner in return for the Taliban’s assurances that it would sever ties with other terrorist groups and start talks with the Kabul government.
• But the Taliban, whose rule is known for strict religious laws, banishing women from public life, shutting down schools and unleashing systemic discrimination on religious and ethnic minorities, has not made any promises on whether it would respect civil liberties or accept the Afghan Constitution.

 

An adieu to democracy in Afghanistan

• The Taliban have got what they wanted: troops withdrawal, removal of sanctions, release of prisoners.
• This has also strengthened Pakistan, Taliban’s benefactor, and the Pakistan Army and the ISI’s influence appears to be on the rise.
• It has made it unambiguous that it wants an Islamic regime.
• The U.S., in a desperate bid to exit the Afghan war, has practically abandoned the Kabul government and millions of Afghans who do not support the Taliban’s violent, tribal Islamism, to the mercy of insurgents.
• The future for the people of Afghanistan is uncertain and will depend on how Taliban honours its commitments and whether it goes back to the medieval practices of its 1996-2001 regimes.

Being the all-time loser

• Afghanistan being rugged and mountainous, ethnically heterogeneous, and poorly developed; foreign powers are intervening on both sides of the conflict.
• The Taliban got what it wanted — the withdrawal of foreign troops — without making any major concession.
• The U.S. withdrawal will invariably weaken the Kabul government, altering the balance of power both on the battlefield and at the negotiating table.
• All of these factors are known to extend the duration of insurgencies, and the civil war has indeed been going on seemingly forever.
• The US-Taliban deal will not change this situation. Additionally, this deal is only between the United States and the Taliban.

Best served American vendetta

• The deal does little to change either the circumstances in Afghanistan or the trajectory of the possible outcomes.
• What it does do is give the White House is a pretext for withdrawing US forces from Afghanistan, a move that virtually ends 19 years war.
• The deal technically qualifies as one step down the path to a potential peace deal for the Afghan civil war.
• The US was never going to build a functioning liberal democracy with a Western-style military in Afghanistan.
• It better recognized its defeat and considered not to sacrifice more American soldiers and inflict more suffering on the Afghan people.
• Although Trump, in an election year, will likely try to sell this as a peace deal and an end to America’s longest war, this deal is unlikely to deliver either of those things.

Implications for India

• India has been backing the Ghani-led government and was among very few countries to congratulate Ghani on his victory.
• India’s proximity to Ghani also drew from their shared view of cross-border terrorism emanating from Pakistan.
• There has not been formal contact with top Taliban leaders, the Indian mission has a fair amount of access to the Pashtun community throughout Afghanistan through community development projects of about $3 billion.
• Due to So, although Pakistan military and its ally Taliban have become dominant players in Kabul’s power circles, South Block insiders insist that it is not all that grim for New Delhi.
• These high-impact projects, diplomats feel India has gained goodwill among ordinary Afghans, the majority of whom are Pashtuns and some may be aligned with the Taliban as well.

 

Conclusion

• Terrorism safe havens are mostly a myth.
• Failed states and ungoverned territory do produce more terrorism within that space, but terrorists rarely travel beyond the immediate borders of these spaces and almost never travel beyond the immediate region.
• Post-9/11 efforts to limit the transnational flow of resources and known terrorists have inhibited the ability of terrorists to strike out, and can continue to do so without a military presence in Afghanistan.
• Some are concerned that the withdrawal of military forces will inhibit counterterrorism efforts in Afghanistan.
• However, the current strategy of seeking and destroying terrorist members is not particularly effective against groups as institutionalized and financially secure as either Al Qaeda or even the Taliban.
• These organizations easily replace lost members without significant disruptions to operations.

Way Forward

• The US military presence itself was one of the biggest inhibitors to peace in Afghanistan, as the widely unpopular Taliban rely on the fight against a foreign occupation as their primary source of legitimacy.
• It was always incompetent to consider that military interventions were the best, or only, tool to pursue these interests. But after the 19 years of war, sudden exit will do more harm.
• The deal may not change much on the ground, but if peace was the immediate requirement, an indefinite US military presence would have never achieved it..
• Much will depend on whether the US and the Taliban are able to keep their ends of the bargain, and every step forward will be negotiated, and how the Afghan government and the political spectrum are involved.
• Diplomatic, policing, and intelligence cooperation with countries that border Afghanistan can help to contain terrorist groups and inhibit their ability to travel beyond the region.

 

 

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References

Explained: US-Taliban Pact

https://www.thenation.com/article/world/us-taliban-peace-deal/

https://www.thehindu.com/opinion/editorial/a-big-bad-deal-the-hindu-editorial-on-us-taliban-agreement/article30957934.ece

 

 

 

Surrogacy in India and Indian surrogates became increasingly popular amongst intended parents in industrialized nations because of the relatively low costs and easy access offered by Indian surrogacy agencies.

Before commercial surrogacy was banned in 2015, India was a popular destination for surrogacy.

The economic scale of surrogacy in India is unknown, but study backed by the United Nations in July 2012 estimated the business at more than $400 million a year, with over 3,000 fertility clinics across India.

Context

• The Union Cabinet recently approved the Surrogacy (Regulation) Bill, 2020 which allows any “willing” woman to be a surrogate mother and proposes that widows and divorced women can also benefit from its provisions, besides infertile Indian couples.
• The bill incorporates all recommendations made by a Rajya Sabha select committee, which studied an earlier version of the draft legislation.
• The bill establishes a liberal view on the issues of reproductive rights of women, be it medical termination of pregnancy, the Assisted Reproductive Technology Regulation Bill.

 What are the new Amendments?

It allows any “willing” woman to be a surrogate mother and proposes that widows and divorced women can also benefit from its provisions, besides infertile Indian couples.

The bill proposes to regulate surrogacy by establishing National Surrogacy Board at the central level and, State Surrogacy Board and appropriate authorities in states and UTs respectively.

The proposed insurance cover for surrogate mother has now been increased to 36 months from 16 months provided in the earlier version.

Ethical surrogacy will be allowed on fulfilment of certain conditions  to lndian married couples, Indian-origin married couples and Indian single woman (only widow or divorcee between the age of 35 and 45 years).

Various provisions of the 2019 Bill 

 

Background

• The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare in Lok Sabha in July 2019.
• The Bill defined surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.

Regulation of surrogacy

• The Bill prohibited commercial surrogacy but allowed altruistic surrogacy.
• Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.
• Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

Purposes for which surrogacy is permitted

Surrogacy is permitted when it is:

1. for intending couples who suffer from proven infertility
2. altruistic
3. not for commercial purposes
4. not for producing children for sale, prostitution or other forms of exploitation and
5. for any condition or disease specified through regulations

Eligibility criteria for intending couple

• The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
• A certificate of essentiality will be issued upon fulfilment of the following conditions:

1. A certificate of proven infertility of one or both members of the intending couple from a District Medical Board;
2. An order of parentage and custody of the surrogate child passed by a Magistrate’s court; and
3. Insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.

Preconditions for Eligibility

The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions:

1. the couple being Indian citizens and married for at least five years;
2. between 23 to 50 years old (wife) and 26 to 55 years old (husband);
3. they do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life-threatening disorder or fatal illness; and
4. other conditions that may be specified by regulations.

Eligibility criteria for surrogate mother

To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:

• a close relative of the intending couple;
• a married woman having a child of her own;
• 25 to 35 years old;
• a surrogate only once in her lifetime; and
• possess a certificate of medical and psychological fitness for surrogacy.  Further, the surrogate mother cannot provide her own gametes for surrogacy.

Appropriate authority

• The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act.
• The functions of the appropriate authority include;

1. granting, suspending or cancelling the registration of surrogacy clinics;
2. enforcing standards for surrogacy clinics;
3. investigating and taking action against breach of the provisions of the Bill;
4. recommending modifications to the rules and regulations.

Registration of surrogacy clinics

• Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority.
• Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.

National and State Surrogacy Boards

• The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively.
• Functions of the NSB include:

1. advising the central government on policy matters relating to surrogacy;
2. laying down the code of conduct of surrogacy clinics; and
3. supervising the functioning of SSBs.

Parentage and abortion of surrogate child

• A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.
• An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority.
• This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971.
• Further, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.

Offences and penalties for non-compliance

• The offences under the Bill include:

1. undertaking or advertising commercial surrogacy;
2. exploiting the surrogate mother;
3. abandoning, exploiting or disowning a surrogate child; and
4. selling or importing human embryo or gametes for surrogacy.

• The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.
• The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.

Issues with the 2019 bill

• Having a child is a basic human right. Declaration of Human Rights 1948 says, inter alia, that “men and women of full age without any limitation due to race, nationality or religion have the right to marry and found a family”.
• The Judiciary in India also has recognized the reproductive right of humans as a basic right.
• If the reproductive right is basic constitution right then the right to have a child through surrogacy should also be a basic constitutional right.
• The Bill left out a lot of people who might want to have a baby through surrogacy, including unmarried couples, homosexual couples and single men and women.

Various issues with Surrogacy

• The woman, who is carrying a baby, generally get very less remuneration and large share is taken by ART clinics.
• Surrogacy is generally involves gender selection which itself illegal in India. ART clinics on the name of surrogacy illegally running sex determination and abortion industry.
• The women health is a serious issue in surrogacy.
• The surrogacy involves many risks to baby health such as genetic disorders, low birth weight or membrane damage, etc.
• Surrogacy leads to commoditization of the child, breaks the bond between the mother and the child, interferes with nature and leads to exploitation of poor women in developing countries.
• Many religions do not allow surrogacy even in case of in vitro fertilization like in Catholicism. According to it a child is a gift not right and adopting unnatural means are gravely immoral.
• International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par/uniformity else the concerns and interests of parties involved will remain unresolved. Many times citizenship issues arise due to lack of information on laws of both the countries.

Way Forward

• In India, people are practising surrogacy when nearly 12 million several children are orphans.
• Adoption of a child in India is a complicated and lengthy procedure for those childless couples who want to give a home to these children. Hence, they are forced to opt for IVF or surrogacy.
• There is a strong need to modify and make the adoption procedure simple as an alternative to surrogacy.
• A proper law with strict regulations and enforcement which would address the concerns of all stakeholders in the industry is required.

 

 

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References

https://www.prsindia.org/billtrack/surrogacy-regulation-bill-2019

https://www.livemint.com/politics/policy/cabinet-nod-to-surrogacy-bill-now-widows-and-divorcee-women-can-benefit-as-well-11582720671346.html

https://www.myadvo.in/blog/surrogacy-laws-in-india-an-evaluation/

 

 

Donald Trump’s visit to India continues a trend of more and more frequent visits by US Presidents. He is the first US President to visit India on a stand-alone visit in the seven decades of Indo-US diplomatic ties. US Presidents who came to India before him, from Dwight Eisenhower to Barack Obama, all had other stops in the region.

Here’s how ties between the two countries have evolved, strengthening in key areas while some areas remain a concern.

Visits before 2000, and later

• Between 1947 and 2000, the first 53 years of India-US ties, there were only three visits by US Presidents to India — Dwight Eisenhower in 1959, Richard Nixon in 1969 and Jimmy Carter in 1978.
• In the 20 years since 2000, there have been four visits by three US Presidents — Bill Clinton in 2000, George W Bush in 2006, and Obama in 2010 and 2015. Trumps being the fifth.
• While only three of the nine US Presidents during 1947-2000 visited India, every President in the last two decades has visited India at least once.

Many reasons could be ascribed to the higher frequency of visits — a shift in global geo-politics in the post-Cold War era, India’s economic ascent, rise of an assertive China, and New Delhi’s place on the global high table.

The beginning of Strategic Partnership

• In 2003-04, the first seeds of the Next Steps of Strategic Partnership were sown during the Atal Bihari Vajpayee regime.
• The relationship peaked with the Indo-US nuclear deal in 2008, which was negotiated during 2005-08 between the Manmohan Singh government and the Bush administration, and is considered the game-changer.
• The Obama administration carried forward the relationship, and during his visit in 2010 hosted by Singh, the US promised support to India for a UN Security Council membership.
• When Narendra Modi became PM in 2014, Obama navigated the transition and visited again in 2015, when he was the chief guest for the Republic Day celebrations.

Ties after Trump

• After Trump came to power in 2016, there was a shift in the US political landscape as his unpredictability defined his presidency.
• The Indian government moved fast, and Modi visited the White House in June 2017. It is in this backdrop that the visit is taking place in a year that will witness US presidential elections.

 Namaste Trump

Outcomes of the Visit

Despite years of high-level negotiations, India and the United States did not announce a trade deal—even a so-called mini-deal—despite Trump’s hinted during the visit that an “incredible” agreement was in the works.

President Trump’s visit can easily be cleaved into two separate parts:

1. the symbolism of the joint rally with PM Modi, along with their obvious personal rapport, and
2. the actual bilateral outcomes of their Delhi meeting

• The visit’s concrete outcomes were not as dramatic or historical as the rally images were.
• Although the External Affairs Ministry had said at least five MoUs would be ready for signing, the three made ready were two on health care, and one Letter of Cooperation on LNG pipeline infrastructure.
• The agreement signed for defence purchases worth $3-billion, including American helicopters, has led to both sides signalling more cooperation in defence, military exercises and technology sharing.

Disagreements over the price of apples, walnuts, and medical devices; the US’s demands for greater access to India’s dairy, poultry and e-commerce market; and ongoing discussions over lowering Indian tariffs on American-made Harley Davidson motorcycles, remain unresolved.

A “new designation” to the bilateral ties:

Comprehensive Strategic Global Partnership

• Giving concrete shape to an India-US ‘Comprehensive Global Strategic Partnership’ was the biggest achievement of Trump’s visit which was otherwise high on optics and low on substance.
• The CGSP was initiated in 2013 when PM Manmohan Singh had visited the US and met President Barack Obama.
• The two leaders had then claimed that the India-US relationship has developed a “comprehensive global strategic partnership”.
• In a joint statement, both nations vowed to strengthen India-US CGSP, anchored in mutual trust, shared interests, goodwill and robust engagement of their citizens.

Core of the extravaganza

Why US matters for India?

1) Support against terrorism

• This intense engagement has helped achieve robust support from the US against terrorism.
• This was evident after the Pulwama attack last year, leading to designation of Jaish-e-Mohammed chief Masood Azhar as a global terrorist under UN Security Council Resolution 1267, and the placing of Pakistan on the grey-list of the FATF.
• While Trump was once very critical on Pakistan, he has nuanced his position on Pakistan in the last seven months.
• And now, with a deal between the US and the Taliban likely, his approach towards Pakistan, long-time benefactor of the Taliban, will be tested in the months to come.

2) Defence

• For India, its relationship with the US on defence issues has strengthened.
• India has procured over $18 billion worth of defence items from the US, almost half of this in the last five years.
• India conducts more bilateral exercises with the US than with any other country.
• And, under Trump, the announcement of India’s elevation to Tier I of the Strategic Trade Authorization licence exception has opened up US defence technologies from the time when India faced a technology-denial regime.

3) Energy

• The other area where the relationship has grown in recent years is energy.
• The bilateral Strategic Energy Partnership was launched in April 2018; India has started importing crude and LNG from the US from 2017 and 2018 respectively.
• The total imports are estimated at $6.7 billion — having grown from zero.
• The US is also India’s sixth largest source of crude oil imports, with hydrocarbon imports rising to $7 billion in the last two years.

4) Trade

• In the backdrop of the global economic slowdown, where India’s global exports have fallen consistently, it is important for the country to diversify and strengthen bilateral relations with other markets.
• It has set its sights on “large developed markets”, improved access to which would help its industry and services sectors.
• These include the US, which has, over the last two decades, become a crucial trading partner in terms of both goods and services.

Why India matters to the US?

1) India as an open data market

• India is, after all, the largest open data market in the universe. Per capita, more data is consumed in India than anywhere else in the world.
• For American “big tech” firms, India provides a scale for their products unavailable in any other country.
• Despite current economic woes, this will continue to be the largest growing and relatively open consumer market for American products and business.

2) Indian-Americans

• About 4.5 million people of Indian origin live in the US today, but despite their relatively small numbers, Indian Americans are a growing political force in the country.
• Trump has sought to court the Indian-American vote in the run-up to the 2020 election.

3) India as a defence partner

• India is also a large arms importer.
• Defence trade is widely seen as the silver lining in this relationship – US-India defence deals have ballooned in the past decade, from nearly zero in 2008 to a little more than $15bn in 2019.

4) India as a possible solution to China’s hegemony

• On the trade front, India can be an effective supplier rather than being an outsourcing hub if compared to China.
• Strategically also, the U.S. views India as a platform to contain China’s hegemony.
• India sees it as an opportunity for economic expansion, with the U.S. being an equal partner.

Areas of contention

Tariff issues

• The US feels that India is a high tariff country, and wants these reduced and a more predictable regime to conduct business.
• Although the growth is 10% per year, many feel the potential is much higher.

Visa norms

• The other area of contention has been the movement of Indian skilled professionals to the US under the H1B programme.
• While the US President has always made immigration a key campaign theme, it has not led to any major barriers for Indians so far. But in an election year in the US, the rhetoric could sharpen.

Conclusion

• India needs to keep US on its side for strategic and security reasons – the grand welcome India accorded the US president showed how serious it is about the relationship.
• But the immediate future of the relationship depends on the upcoming US presidential elections.
• These are relationship-building visits that serve as signalling mechanisms too.
• If India-US relationship is a defining one for this century, as Modi said, Trump’s visit helps in that definition.
• India will find it easier to deal with a leader it has already invested in, hoping Trump’s unpredictable nature won’t harm the relationship.

Way Forward

• Although any major trade package deal could not be clinched this time, in terms of emboldening the bilateral ties, this visit was critical.
• The fact that President Trump did visit India and understand the imperatives is in itself a big achievement, considering his unpredictable nature.
• It is also true that these visits are never about massive deliverables. These visits create an impression.
• As many regards, the thinking beyond transactionalism in this event was a big achievement for both.
• Having a trade deal becomes an uphill task with both sides taking a protectionist stance.
• The two governments must now strive to complete the unfinished agreements and set the course for their newly designated ‘Comprehensive Strategic Global Partnership’.

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References

https://indianexpress.com/article/explained/explained-donald-trump-visit-india-us-ties-over-the-years-bush-nixon-clinton-jimmy-carter-6280481/

https://www.livemint.com/opinion/online-views/no-trade-deal-with-trump-still-a-win-for-india-11582771353905.html

https://theprint.in/diplomacy/comprehensive-global-strategic-partnership-what-modi-trump-just-formalised-is-2013-concept/371631/

 

Nearly nine decades after the 1932 Poona pact between B.R. Ambedkar and Mahatma Gandhi that initiated reservation for backward classes, the debate on social justice is only getting shriller. In the latest, a February 7 Supreme Court order, that states that reservation is not a fundamental right, has sparked an intense political debate and disquiet amongst backward communities.

 

Context

• The SC was deciding a group of appeals pertaining to the reservations to SC’s and ST’s in promotions in the posts of Assistant Engineer (Civil) in the Public Works Department, Government of Uttarakhand.
• It ruled that “there is no fundamental right which inheres in an individual to claim reservation in promotion”, and that ‘no mandamus can be issued by court directing state government to provide reservations.’

What does the Constitution say on reservations?

• Article 14 of the Constitution guarantees equality before the law and equal protection of laws to everyone.
• Similarly, Article 16(1) and 16(2) assure citizens equality of opportunity in employment or appointment to any government office. 
• Article 15(1) generally prohibits any discrimination against any citizen on the grounds of religion, caste, sex or place of birth. 
• However, Articles 15(4) and 16(4) state that these equality provisions do not prevent the government from making special provisions in matters of admission to educational institutions or jobs in favor of backward classes, particularly the Scheduled Castes (SCs) and the Scheduled Tribes (STs).
• Article 16(4A) allows reservations to SCs and STs in promotions, as long as the government believes that they are not adequately represented in government services.

What did the Hon’ble Supreme Court rule?

 

Reservation is not a Fundamental Right

• Article 16 (4) and 16 (4-A) are in the nature of enabling provisions, vesting a discretion on the State Government to consider providing reservations, if the circumstances so warrant.
• It is settled law that the State Government cannot be directed to provide reservations for appointments in public posts.
• Similarly, the State is not bound to make reservations for Scheduled Castes and Scheduled Tribes in matters of promotions.

Quota in promotion

• The judgment added that it is for the State Government to decide whether this was necessary.
• The State can form its own opinion on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority.
• All that is required is that there must be some material on the basis of which the opinion is formed.
• The court should show due deference to the opinion of the State and such opinion is not beyond judicial scrutiny, SC said.

Need for quantifiable data

• However, if the state wishes to exercise their discretion and make such provision, the State has to collect quantifiable data showing the inadequacy of representation of that class in public services, the bench said.
• It added that if the decision of the State Government to provide reservations in promotion is challenged, the State concerned shall have to place before the Court the requisite quantifiable data and satisfy the Court that such reservations became necessary.
• It should be on account of the inadequacy of representation of SCs and STs in a particular class or classes of posts without affecting the general efficiency of administration as mandated by Article 335 of the Constitution.
• On the requirement for data collection, the court said this is only to justify reservation to be made in the matter of appointment or promotion to public posts, according to Article 16 (4) and 16 (4-A) of the Constitution.
• As such, collection of data regarding the inadequate representation of members of the SCs and STs is a prerequisite for providing reservations and is not required when the State Government decided not to provide reservations.

What do the precedents say?

• There are several major Supreme Court judgments that have, in the past, ruled that Articles 15(4) and 16(4) does not provide a fundamental right per se.
• A five-judge apex court bench, as early as 1962 in the R. Balaji v. the State of Mysore had ruled that Article 15(4) is an “enabling provision”, meaning that “it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary”.
• The court was hearing a challenge to an order passed by the erstwhile state of Mysore reserving 68 percent of seats in engineering and medical colleges for educationally and socially backward classes and SCs and STs.
• Five years later, in 1967, another five-judge bench in A. Rajendran v. Union of India reiterated this position, holding that the government is under no constitutional duty to provide reservations for SCs and STs, either at the initial stage of recruitment or at the stage of promotion.
• Article 16(4), it said, does not confer any right on the citizens and is an enabling provision giving discretionary power to the government to make reservations.
• The position went on to be reiterated in several other decisions, including the nine-judge bench ruling in Indra Sawhney v. Union of India (1992) and the five-judge bench decision in M Nagaraj v. Union of India (2006).

What has happened in the Uttarakhand case?

• The Court set aside the Uttarakhand High Court order directing data collection on the adequacy or inadequacy of representation of SC/ST candidates in the State’s services.
• Its reasoning is that once there is a decision not to extend reservation — in this case, in promotions — to the section, the question whether its representation in the services is inadequate is irrelevant.

What does the judgment mean?

• Reservations are not rights: The latest judgment is a reminder that affirmative action programs allowed in the Constitution flow from “enabling provisions” and are not rights as such.
• Not a new legal position: This legal position is not new. Major judgments- these include those by Constitution Benches-note that Article 16(4), on the reservation in posts, is enabling in nature.
• The state is not bound to provide reservation: In other words, the state is not bound to provide reservations. But if the state provides reservations, it must satisfy the following two criteria-
  • For the backward class: It must be in favor of sections that are backward.
  • Inadequately represented: And inadequately represented in the services based on quantifiable data.

Question of government obligation

• The idea that reservation is not a right may be in consonance with the Constitution allowing it as an option.
• But a larger question looms is there no government obligation to continue with affirmative action if-
  • The social situation that keeps some sections backward.
  • And at the receiving end of discrimination persists?

Consequences of this judgment

• Possibility of the unequal system: Some may even read into this an inescapable state obligation to extend reservation to those who need it, lest its absence renders the entire system unequal.
• Possibility of perceptible imbalance: For instance, if no quotas are implemented and no study on backwardness and extent of representation is done, it may result in a perceptible imbalance in social representation in public services.

Why reservation matters for equality?

• Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality.
• The terms “proportionate equality” and “substantive equality” have been used to show that the equality norm acquires completion only when the marginalized are given a legal leg-up.

 Substantive Equality under question

• Formal equality is about treating all people alike and distributing resources equally among them.
• However, someone at a disadvantage needs support to a greater extent than someone who is comfortably placed. Substantive equality recognizes this qualitative difference.
• Unlike formal equality, it classifies the prospective beneficiaries on the basis of their need and the likely scope of benefit to them.
• It takes into account people’s location along an axis of advantages and disadvantages. If substantive equality is part of our right to equality, it is untenable to insist that reservation is not a right.
• While a limited interpretation of fundamental rights may be technically correct, it will not make for sound policy.

Way forward

• Meanwhile, calls for reform and ret­hinking reservation policies get louder; one question is whether there’s a need to continue with reservation and if benefits have reached targets.
• The challenge for India is that while many sections of the society remain disadvantaged, political action has resulted in the relative discrimination within reserved groups.
• As the reservation pie grows larger, in effect, it becomes a method of exclusion rather than inclusion.
• It is time that India has to make a critical assessment of its affirmative action programs.
• Simplification, legislative sunsets, and periodic reviews should be important principles in the redesign.

 

 

 

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References

https://www.civilsdaily.com/news/reservation-as-right-on-supreme-court-judgment/

https://indianexpress.com/article/india/reservation-in-job-promotions-not-fundamental-right-supreme-court-6258857/

https://www.nationalheraldindia.com/opinion/supreme-court-on-reservation-opening-pandoras-box

https://theprint.in/theprint-essential/sc-quota-ruling-is-nothing-new-reservation-in-jobs-was-never-a-fundamental-right/363200/

 

 

Key recommendations in the first report (2020-21 period) include:

 

Devolution of taxes to states

• The share of states in the centre’s taxes is recommended to be decreased from 42% during the 2015-20 period to 41% for 2020-21.
• The 1% decrease is to provide for the newly formed union territories of Jammu and Kashmir, and Ladakh from the resources of the central government.
• The individual shares of states from the divisible pool of central taxes are provided in table in the annexure.

Why need devolution formula?

• The Finance Commission is required to recommend the distribution of the net proceeds of taxes of the Union between the Union and the States (commonly referred to as vertical devolution), and the allocation between the States of the respective shares of such proceeds (commonly known as horizontal devolution).
• The FC determines the States’ aggregate share in the divisible pool and its horizontal devolution among the States.

• The basic objective of a horizontal devolution is to enable the States to provide basic public goods and services with equivalent tax effort. Achieving this may entail:
  1. filling up the vertical fiscal gap of the States;
  2. providing horizontal equity (by providing higher share to poorer regions);
  3. equalizing the fiscal capacities of States (revenue equalization);
  4. providing for cost differentials in States for basic public service (expenditure equalization); and
  5. ensuring that the States have enough incentives to mobilise own revenue and spend them appropriately in an efficient manner.

Various criteria used

Criteria	14th FC 2015-20	15th FC 2020-21
Income Distance	50.0	45.0
Population (1971)	17.5	–
Population (2011)	10.0	15.0
Area	15.0	15.0
Forest Cover	7.5	–
Forest and Ecology	–	10.0
Demographic Performance	–	12.5
Tax Effort	–	2.5
Total	100	100

 

Income distance: Income distance is the distance of the state’s income from the state with the highest income.  The income of a state has been computed as average per capita GSDP during the three-year period between 2015-16 and 2017-18.  States with lower per capita income would be given a higher share to maintain equity among states.

New criteria ‘Demographic performance’: The Terms of Reference (ToR) of the Commission required it to use the population data of 2011 while making recommendations.   Accordingly, the Commission used only 2011 population data for its recommendations.

The Demographic Performance criterion has been introduced to reward efforts made by states in controlling their population.   It will be computed by using the reciprocal of the total fertility ratio of each state, scaled by 1971 population data.   States with a lower fertility ratio will be scored higher on this criterion.  The total fertility ratio in a specific year is defined as the total number of children that would be born to each woman if she were to live to the end of her child-bearing years and give birth to children in alignment with the prevailing age-specific fertility rates.

Forest and ecology: This criterion has been arrived at by calculating the share of dense forest of each state in the aggregate dense forest of all the states.

Tax effort: This criterion has been used to reward states with higher tax collection efficiency.   It has been computed as the ratio of the average per capita own tax revenue and the average per capita state GDP during the three-year period between 2014-15 and 2016-17.

 

Grants-in-aid

In 2020-21, the following grants will be provided to states:

(i) Revenue deficit grants,

(ii) Grants to local bodies, and

(iii) Disaster management grants

The Commission has also proposed a framework for sector-specific and performance-based grants.  State-specific grants will be provided in the final report.

Revenue deficit grants: 

• In 2020-21, 14 states are estimated to have an aggregate revenue deficit of Rs 74,340 crore post-devolution.
• The Commission recommended revenue deficit grants for these states.

Special grants:

• In case of three states, the sum of devolution and revenue deficit grants is estimated to decline in 2020-21 as compared to 2019-20.
• These states are Karnataka, Mizoram, and Telangana.

 Sector-specific grants: 

• Sector-specific grants for the following sectors will be provided in the final report: (i) nutrition, (ii) health, (iii) pre-primary education, (iv) judiciary, (v) rural connectivity, (vi) railways, (vii) police training, and (viii) housing

Performance-based grants:

Guidelines for performance-based grants include: (i) implementation of agricultural reforms, (ii) development of aspirational districts and blocks, (iii) power sector reforms, (iv) enhancing trade including exports, (v) incentives for education, and (vi) promotion of domestic and international tourism.  The grant amount will be provided in the final report.

Grants to local bodies: 

• The total grants to local bodies for 2020-21 has been fixed at Rs 90,000 crore, of which Rs 60,750 crore is recommended for rural local bodies (67.5%) and Rs 29,250 crore for urban local bodies (32.5%).
• This allocation is 4.31% of the divisible pool.   This is an increase over the grants for local bodies in 2019-20, which amounted to 3.54% of the divisible pool.
• The grants will be divided between states based on population and area in the ratio 90:10. The grants will be made available to all three tiers of Panchayat- village, block, and district.

Disaster risk management:  

• The Commission recommended setting up National and State Disaster Management Funds (NDMF and SDMF) for the promotion of local-level mitigation activities.
• The Commission has recommended retaining the existing cost-sharing patterns between the centre and states to fund the SDMF (new) and the SDRF (existing).
• The cost-sharing pattern between centre and states is (i) 75:25 for all states, and (ii) 90:10 for north-eastern and Himalayan states.

 

Recommendations on fiscal roadmap

Fiscal deficit and debt levels: 

• The Commission noted that recommending a credible fiscal and debt trajectory roadmap remains problematic due to uncertainty around the economy.
• It recommended that both central and state governments should focus on debt consolidation and complies with the fiscal deficit and debt levels as per their respective Fiscal Responsibility and Budget Management (FRBM) Acts.

Off-budget borrowings: 

• The Commission observed that financing capital expenditure through off-budget borrowings detracts from compliance with the FRBM Act.
• It recommended that both the central and state governments should make full disclosure of extra-budgetary borrowings.
• The outstanding extra-budgetary liabilities should be clearly identified and eliminated in a time-bound manner.

Statutory framework for public financial management: 

The Commission recommended forming an expert group to draft legislation to provide for a statutory framework for sound public financial management system.   It observed that an overarching legal fiscal framework is required which will provide for budgeting, accounting, and audit standards to be followed at all levels of government.

Tax capacity: 

• In 2018-19, the tax revenue of state governments and central government together stood at around 17.5% of GDP.
• The Commission noted that tax revenue is far below the estimated tax capacity of the country.  Further, India’s tax capacity has largely remained unchanged since the early 1990s.
• In contrast, tax revenue has been rising in other emerging markets.
• The Commission recommended: (i) broadening the tax base, (ii) streamlining tax rates, (iii) and increasing capacity and expertise of tax administration in all tiers of the government

GST implementation: 

• The Commission highlighted some challenges with the implementation of the Goods and Services Tax (GST).
• These include: (i) large shortfall in collections as compared to original forecast, (ii) high volatility in collections, (iii) accumulation of large integrated GST credit, (iv) glitches in invoice and input tax matching, and (v) delay in refunds.
• The Commission observed that the continuing dependence of states on compensation from the central government for making up for the shortfall in revenue is a concern.
• It suggested that the structural implications of GST for low consumption states need to be considered.

Other recommendations

 

Financing of security-related expenditure:

• The ToR of the Commission required it to examine whether a separate funding mechanism for defence and internal security should be set up and if so, how it can be operationalised.
• In this regard, the Commission intends to constitute an expert group comprising representatives of the Ministries of Defence, Home Affairs, and Finance.
• The Commission noted that the Ministry of Defence proposed following measures for this purpose:

(i) setting up of a non-lapsable fund, (ii) levy of a cess, (iii) monetisation of surplus land and other assets, (iv) tax-free defence bonds, and (v) utilising proceeds of disinvestment of defence public sector undertakings.

 

Challenges before 15th FC

 

 

Even as the work of the Commission was in a fairly advanced stage, designed towards submitting the report by the stipulated date, there were new developments which impacted the recommendations of the XV-FC.

First was the enactment of the Jammu and Kashmir Reorganization Act, 2019, leading to the creation of two new UTs. The FC needs to closely examine how best the needs of the UT of J&K can be addressed keeping in view all relevant factors.

Second, the global scenario is unpredictable and experiencing a synchronised slowdown. After successive downward revisions, the IMF forecast global growth for 2019 at 3 per cent, which is the lowest since the global financial crisis of 2008-09, with further downside risk.

Third, like many other countries, India too is going through a period of economic sluggishness. The growth in real GDP is expected to slow down from 7.2 per cent in 2017-18 to around 6 per cent estimated for 2019-20.

Fourth, weak revenue collections, driven by slowing activity as well as teething problems in implementing some of the newly introduced structural reforms, have elevated the fiscal risks. With real economic growth at a seven-year low, combined with relatively low inflation, growth has been weak in nominal terms as well, leading to a weak tax base.

 

Criticisms

• The population parameter used by the Commission has been criticised by the governments of the southern states.
• The previous FC used both the 1971 and the 2011 populations to calculate the states’ shares, giving greater weight to the 1971 population (17.5%) as compared to the 2011 population (10%).
• The use of 2011 population figures has resulted in states with larger populations like UP and Bihar getting larger shares, while smaller states with lower fertility rates have lost out.
• The combined population of the Bihar, Uttar Pradesh, Madhya Pradesh, Rajasthan and Jharkhand is 47.8 crore.
• This is over 39.48% of India’s total population and is spread over 32.4% of the country’s area, as per the 2011 Census.
• On the other hand, the southern states of Tamil Nadu, Kerala, Karnataka and undivided Andhra Pradesh are home to only 20.75% of the population living in 19.34% of the area, with a 13.89% share of the taxes.
• This means that the terms decided by the Commission are loaded against the more progressive (and prosperous) southern states.

 

 

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References

https://www.prsindia.org/report-summaries/report-15th-finance-commission-fy-2020-21

https://en.wikipedia.org/wiki/Fifteenth_Finance_Commission

https://www.civilsdaily.com/news/recommendations-of-the-15th-finance-commission/

 

Context

• The Finance Commission is a constitutional body formed by the President of India to give suggestions on centre-state financial relations.
• The 15th Finance Commission was required to submit two reports. The commission’s chairman is N. K. Singh, with its full-time members being Ajay Narayan Jha, Ashok Lahiri and Anoop Singh.
• The first report, consisting of recommendations for the financial year 2020-21, was tabled in Parliament on February 1, 2020.
• The final report with recommendations for the 2021-26 period will be submitted by October 30, 2020.

Background

What is Finance Commission?

• The Finance Commission (FC) was established by the President of India in 1951 under Article 280 of the Indian Constitution.
• It was formed to define the financial relations between the central government of India and the individual state governments.
• The Finance Commission (Miscellaneous Provisions) Act, 1951 additionally defines the terms of qualification, appointment and disqualification, the term, eligibility and powers of the Finance Commission.
• As per the Constitution, the FC is appointed every five years and consists of a chairman and four other members.
• Since the institution of the First FC, stark changes in the macroeconomic situation of the Indian economy have led to major changes in the FC’s recommendations over the years.

Constitutional Provisions

Several provisions to bridge the fiscal gap between the Centre and the States were already enshrined in the Constitution of India, including Article 268, which facilitates levy of duties by the Centre but equips the States to collect and retain the same.

Article 280 of the Indian Constitution defines the scope of the commission:

1. The President will constitute a finance commission within two years from the commencement of the Constitution and thereafter at the end of every fifth year or earlier, as the deemed necessary by him/her, which shall include a chairman and four other members.
2. Parliament may by law determine the requisite qualifications for appointment as members of the commission and the procedure of selection.
3. The commission is constituted to make recommendations to the president about the distribution of the net proceeds of taxes between the Union and States and also the allocation of the same among the States themselves. It is also under the ambit of the finance commission to define the financial relations between the Union and the States. They also deal with the devolution of unplanned revenue resources.

Why need Finance Commission?

• As a federal nation, India suffers from both vertical and horizontal fiscal imbalances.
• Vertical imbalances between the central and state governments result from states incurring expenditures disproportionate to their sources of revenue, in the process of fulfilling their responsibilities.
• However, states are better able to gauge the needs and concerns of their inhabitants and therefore more efficient at addressing them.
• Horizontal imbalances among state governments result from differing historical backgrounds or resource endowments, and can widen over time.
• The first FC was established in 1951 by Dr. B.R. Ambedkar, the then-incumbent law minister, to address these imbalances.

Important functions

• Distribution of net proceeds of taxes between Center and the States, to be divided as per their respective contributions to the taxes.
• Determine factors governing Grants-in-Aid to the states and the magnitude of the same.
• To make recommendations to the president as to the measures needed to augment the Fund of a State to supplement the resources of the panchayats and municipalities in the state on the basis of the recommendations made by the finance commission of the state.
• Any other matter related to it by the president in the interest of sound finance.

Members of the Finance Commission

• The Finance Commission (Miscellaneous Provisions) Act, 1951 was passed to give a structured format to the finance commission and to bring it to par with world standards.
• It laid down rules for the qualification and disqualification of members of the commission, and for their appointment, term, eligibility and powers.
• The Chairman of a finance commission is selected from people with experience of public affairs. The other four members are selected from people who:

1. Are, or have been, or are qualified, as judges of a high court,
2. Have knowledge of government finances or accounts, or
3. Have had experience in administration and financial expertise; or
4. Have special knowledge of economics

Finance Commission versus Planning Commission

• It is alleged that Planning Commission (PC) which is neither a constitutional nor a statutory body had usurped the role of FC.
• PC had restricted FC’s role to mere recommend grants to states on revenue account only under article 275 of Indian constitution.
• However, after the formation of NITI Aayog which replaced the PC, the government seeked to empower FC with the originally envisaged task of distribution of revenue to the states.