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  • What is the Delhi Dual Governance Conundrum?

    New Delhi has been at the flashpoint of innumerable power struggles these days.

    Why in news?

    • In the absence of statehood for Delhi, there has been a prolonged confrontation on the relative powers of the territorial administration and the Union government.

    Dilemmas of Dual Governance

    • Article 239AA of the Constitution of India granted Special Status to Delhi among Union Territories (UTs) in the year 1991 through the 69th constitutional amendment.
    • It provided a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers.
    • That’s when Delhi was named as the National Capital Region (NCT) of Delhi.
    • As per this article – Public Order, Police & Land in NCT of Delhi fall within the domain and control of Central Government which shall have the power to make laws on these matters.
    • For remaining matters of State List or Concurrent List, in so far as any such matter is applicable to UTs, the Legislative Assembly shall have the power to make laws for NCT of Delhi

    [a] Centre-State Dispute

    • Delhi was given a fully elected legislative assembly and a responsible government through an amendment in the constitution in 1991.
    • Since 1991, Delhi had been made a UT with an assembly with “limited legislative powers”.
    • Cordial relations have prevailed between the Central and Delhi governments since 1996 and all differences have been resolved through discussions – with a few exceptions.

    [b] Lt. Governor vs the CM

    • The Article 239AA while conferring on the assembly the power to legislate on all matters in the state list as well as the concurrent list except land, police and public order – contained one sore point.
    • It said that in case of a difference between the L-G and the council of ministers, the matter shall be referred to the president by the LG for his decision and pending such decision the LG can take any action on the matter as he thinks fit.
    • It is this issue that the constitution bench of the Supreme Court resolved in 2018, when it said that the government does not have to seek the concurrence of the L-G on its decisions.
    • Any differences between them should be resolved to keep in view the constitutional primacy of representative government and co-operative federalism.

    It is after this judgement, the Centre brought up this Bill.

    [c] NCT of Delhi (Amendment) Bill, 2021

    • Among the major proposed amendments, one makes it explicitly clear that the term “government” in any law made by the Legislative Assembly shall mean the L-G.
    • This, essentially, gives effect to the former L-G 2015 assertion that “Government means the Lieutenant Governor of the NCT of Delhi appointed by the President under Article 239 and designated as such under Article 239 AA of the Constitution”.
    • The Bill adds that the L-G’s opinion shall be obtained before the government takes any executive action based on decisions taken by the Cabinet or any individual minister.

     

    [d] 

    Delhi Municipal Corporation (Amendment) Bill, 2022

     

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  • Loudspeaker Crackdown: Court orders and Govt directives

    Illegal and unauthorized loudspeakers had been taken down across the Uttar Pradesh and their loudness had been capped, under “an existing government order of 2018, and set rules for sound decibel limits and court directions”.

    What is the news?

    • The UP state authorities have taken action since the loudspeaker crackdown began in our country.
    • Notices were served to alleged violators by local police stations citing the order of Allahabad High Court of 2017, and centre’s the Noise Pollution Rules, 2000.
    • The recent UP order asked officials to remove illegal loudspeakers after dialogue and coordination with religious leaders, and to ensure that decibel levels are kept within laid down limits.

    Legal basis of loudspeaker crackdowns

    (a) Orders of 2022, 2018

    • The April 23 order said that two earlier orders passed by the government in 2018 were not being followed, and the situation needed to be rectified.
    • Those earlier orders had been passed to ensure implementation of The Noise Pollution (Regulation and Control) Rules, 2000.
    • However, it had come to knowledge that many religious institutions are violating the standard decibel norms and are using loudspeakers in large numbers.

    (b) The Noise Pollution Rules, 2000

    • The 2000 Rules define “Ambient Air Quality Standards in Respect of Noise”, i.e., Industrial, Commercial, Residential, and Silence Zones.
    • It asked officials to demarcate these areas and to ensure that the correct norms were followed.
    • Each police station has been asked to prepare a list of religious institutions using loudspeakers under their jurisdiction.

    What is noise pollution?

    • Noise is defined as unwanted sound. A sound might be unwanted because it is loud, distracting, or annoying.
    • Noise pollution is manmade sound in the environment that may be harmful to humans or animals.

    Objective of the NPR, 2000: To regulate and control noise producing and generating sources with the objective of maintaining the ambient air quality standards in respect of noise

    Important compliance’s under NPR, 2000

    • What are the restrictions on using loud speaker or musical system at night?
      : A person cannot play a loud speaker, public address system, sound producing instrument, musical instrument or a sound amplifier at night time except in closed premises like auditorium, conference rooms, community halls or banquet halls.
    • What is the noise level for using loudspeakers or the public address?
      : The persons using loudspeakers or public address shall maintain the noise level and restrain it from exceeding 10 dB (A) above the ambient noise standards for the area specified or 75 dB (A) whichever is lower.
    • What is the Noise level for a private sound system?
      : The persons owning a private sound system or a sound producing instrument shall not, exceed the noise above 5 dB (A) the noise standards specified for the area in which it is used.
    • What are the prohibitions on violating the silence zone areas?
      A person shall not do the following acts in silence zone

      1. Playing any music or uses any sound amplifiers,
      2. A drum or tom-tom or blows a horn either musical or pressure, or trumpet or beats or sounds  any instrument, or
      3. Playing any musical or other performance of a to attract crowd
      4. Bursting sound-emitting firecrackers
      5. Using a loudspeaker or a public address system.

     

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  • Autism Support Network to give Specialised Care in Rural India

    The Centre for Autism and Other Disabilities Rehabilitation Research and Education (CADRRE), a not-for-profit organization will launch “Pay Autention — a different mind is a gifted mind”, India’s first bridgital autism support network.

    Pay ‘Autention’

    • The initiative shall pave the way for small towns and rural India to access specialised care and support and help create an auxiliary network of champions for the differently-abled.
    • This platform shall also enable mentoring, skilling and meaningful livelihoods for people with autism.
    • In the first phase, the initiative will primarily focus on supporting children with autism, and subsequently, in the second stage, it will focus on young adults, empowering them with life skills and career readiness.
    • The content is designed and delivered in collaboration with specialists from CADRRE who have expertise in training children with autism.
    • The project aims to create a network of grassroots champions, enable early identification, first-level care, teach social skills, ways to ease activities of daily living, hold workshops for sensory and motor development.
    • It also focuses on art and craft, dance, music therapy, physical and mental fitness, communication skills and enable support for academics.

    What is Autism?

    • Autism, also called autism spectrum disorder (ASD), is a complicated condition that includes problems with communication and behaviour.
    • It can involve a wide range of symptoms and skills.
    • ASD can be a minor problem or a disability that needs full-time care in a special facility.
    • People with autism have trouble with communication. They have trouble understanding what other people think and feel.
    • This makes it hard for them to express themselves, either with words or through gestures, facial expressions, and touch.
    • People with autism might have problems with learning. Their skills might develop unevenly.
    • For example, they could have trouble communicating but be unusually good at art, music, math, or memory.

    What are the signs of Autism?

    Symptoms of autism usually appear before a child turns 3. Some people show signs from birth. Common symptoms of autism include:

    • A lack of eye contact
    • A narrow range of interests or intense interest in certain topics
    • Doing something over and over, like repeating words or phrases, rocking back and forth, or flipping a lever
    • High sensitivity to sounds, touches, smells, or sights that seem ordinary to other people
    • Not looking at or listening to other people
    • Not looking at things when another person points at them
    • Not wanting to be held or cuddled
    • Problems understanding or using speech, gestures, facial expressions, or tone of voice
    • Talking in a sing-song, flat, or robotic voice
    • Trouble adapting to changes in routine

    What causes Autism?

    • Exactly why autism happens isn’t clear. It could stem from problems in parts of your brain that interpret sensory input and process language.
    • Autism is four times more common in boys than in girls. It can happen in people of any race, ethnicity, or social background.
    • Family income, lifestyle, or educational level doesn’t affect a child’s risk of autism. But there are some risk factors:
    1. Autism runs in families, so certain combinations of genes may increase a child’s risk.
    2. A child with an older parent has a higher risk of autism.
    3. Pregnant women who are exposed to certain drugs or chemicals, like alcohol or anti-seizure medications, are more likely to have autistic children
    4. Other risk factors include maternal metabolic conditions such as diabetes and obesity.

    Prevalence of Autism in India

    • Prevalence and incidence statistics about autism in India is 1 in 500 or 0.20% or more than 2,160,000 people.
    • According to a study, an estimated three million people live with autistic spectrum disorder (ASD) on the Indian subcontinent.

     

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  • [Sansad TV] Mudda Aapka: Sports as a Fundamental Right

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    Context

    • The Supreme Court has sought the opinion of the Centre and state governments on a suggestion that physical literacy or sports be recognised as a fundamental right.
    • It goes on to say that all education boards be asked to ensure at least 90 minutes of every school day to be dedicated to “free play and games”.

    Sports as a FR: A Backgrounder

    • India is a vibrant country that has always carried a fevered pitch and fervent excitement for sports.
    • The Supreme Court decision in the Bombay Dyeing case (2006) is emblematic of our vision for sport.
    • The Court, in August 2018, had asked for responses of the Centre and state governments in a public interest litigation filed by Kanishka Pandey, a sports researcher.
    • Subsequently, the court had appointed Sankarnarayanan as an amicus in April 2019 to assist it and suggest measures to deal with the issue.

    Key recommendations in recent plea

    • Sports as FR under Article 21A: As part of a plea before the Supreme Court seeking to declare playing sports as a fundamental right, a report has been submitted by amicus curiae. It suggested that the broad term “physical literacy” be adopted instead of sports.
    • 90 minutes of physical activity: Also, all education boards must be asked to ensure at least 90 minutes of every school day be dedicated to “free play and games”.
    • Sports be transferred to concurrent list: The petition also seeks to transfer sports to the concurrent list and to form an independent Ministry of Education, Sports and Youth Empowerment at union and state levels.
    • Sports as a part of education policy: The plea also asks for directions to governments to amend education policies to promote sports and make facilities available to enhance the opportunities to play sports.
    • National Physical Literacy Mission: The report makes a number of suggestions in this regard – from asking the government to establish a National Physical Literacy Mission.

    Another striking feature: National Physical Literacy Mission

    • The report also proposed for all registered and unregistered private and public education institutions to have, publish and disseminate to all parents/guardians a Physical Literacy Policy.
    • The Policy would acknowledge the institution’s legal commitment to integrate physical literacy in all aspects of its curriculum.
    • This is to ensure that physical literacy is a part of the overall curriculum and syllabus for national and state school boards, in particular the National Curricular Framework for School Education 2020-21.

    Why must we consider the fundamental right to physical literacy?

    • Physical activity is fundamental to human beings:  The report states that having a fundamental right to literacy would mean identifying the intrinsic value of physical activity to human living.
    • Part of elementary education: It would mean not seeing physical activity as an end in itself, and the establishment of physical activity/ physical education as a core component of the education curriculum.
    • Supportive to other FRs: A fundamental right to physical literacy would actualise and enhance the enjoyment of other fundamental rights. It would go a long way in enhancing the opportunities and freedom to express oneself.
    • Enhancing life quality: A physically literate individual would have a more fulfilling life of higher quality than one who is not.  Physical literacy, as a building block, would go a long way in the promotion and realisation of the right to health and the right to education.
    • Religion as a barriers: Some sports like swimming and athletics require attire that does not fully cover a woman’s body and are against the laws of some religions. They are often debated in light of modesty of the sportspersons beings violated.
    • Associated social reforms: Many women perceive sports as an opportunity to escape the confines of a highly regulated life. They use it as a tool to show their potential and tackle the patriarchal mindset. Further success of sportspersons like Mary Kom, Saina Nehwal, etc. have played a pivotal role in curbing the problems of child marriage and son meta preference.

    Why need such a policy?

    • Poor performance in competitions: India has the worst population to medals ratio at the Olympics. We find our medal tally at the Olympics to be hopelessly out of sync with our 1.3 billion population.
    • Regressive attitude towards sports: Our attitude towards sport and physical well-being is another debilitating factor. Traditionally, India has not been a sports nation where many deserving candidates are discouraged right at the starting level.
    • Economic divide: It hard reality which we consistently refuse to acknowledge. Athletes are not generated from the comfortable classes, they invariably come often from the middle and lower economic strata.
    • Incentivization: There is more focus on post-success incentivization rather than pre-success support in India. For instance, the Haryana Government announced a 6 crore reward after Neeraj Chopra won the gold medal in Tokyo Olympics 2020.

    Significance of physical education and sports

    • Physical development: Fitness, Health
    • Mental development: It improves decision making and collective action. It also acts as stress buster.
    • Character/ personality development: It instils confidence, team spirit, team coordination, group work)

    Benefits of augmenting sports career

    • Alternative career development: For those for whom opportunities are few, and jobs are scarce, sport becomes a powerful mobility device. A strong sports sector encourages an average/ poor academic student to make a career in sports.   
    • Reaping demographic dividend: India is having a very young population and is soon going to become the world’s youngest country. In such a scenario, a robust sports sector can help in reaping the potential demographic dividend. 
    • Revenue generation: Developing robust sports infrastructure in the country will allow India to host a greater number of international events. Such hosting boosts tourism in the country and results in enhancing the revenue and employment in the region. Ex. IPL
    • Promotes the spirit of Unity in Diversity: People cheer for the Indian athletes and Indian teams at international events. An improvement in sports automatically fosters the spirit of brotherhood amongst the people of diverse nations. For instance, the Pan India support enjoyed by Indian cricket team enhances belongingness between India’s north and south. 

    Reasons for India’s poor performance

    India’s below-par performance in sports can be attributed to the combination of all the factors discussed below:

    • Lack of facilities: We have thousands of education centres all over the country, but there are very few schools and colleges which have adequate facilities for any sport.
    • Regional discrepancies: The spending of money is concentrated in major cities where facilities do exist, but the broad-based structure to tap and develop talent is missing. The facilities wherever they are created are confined to a few popular games like cricket, hockey, football, tennis, etc.
    • Burden of ill-health: Mother and child health is an all-time contested issue in India. This may well be attributed to weather conditions, poor economic condition generally-due to which nutrition is not available to most of our children.
    • Narrow perception: The parents are keen that their kids should do well studies to get a degree and ultimately fetch a good job. Playing for long hours regularly is considered a waste of time.
    • Lesser academia for physical education: There are few Sports Colleges which are genuinely making efforts to produce national-level sportsmen, but their number is so small that no perceptible impact is seen due to their existence.
    • Lack of training: Another reason for our poor performance in sports is the lack of required number of trainers, coaches and psychotherapists. There is also a dearth of quality coaching or the qualified coaches.
    • Non-interest: The west often accuse that Indians lack the killer’s instinct. The zest and enthusiasm necessary to win over the opponent is naturally absent in the Indian psyche.
    • Obsession for few sports: There is no doubt that cricket and hockey plays a major unifying role in India. However, other sports and sportsperson are often discouraged due to such obsessions.
    • Performance anxiety: A high degree of pressure is inflicted upon a sportsperson to perform or else be prepared to live a vulnerable life. This sometimes creates excessive mental stress in them or induces them to resort to unethical means like doping.

    Various initiatives for sports promotion

    The Ministry of Youth Affairs & Sports has formulated the following schemes to promote sports in the country, including in rural, tribal and backward areas:

    1. Khelo India Scheme
    2. Assistance to National Sports Federations
    3. Special Awards to Winners in International sports events and their Coaches
    4. National Sports Awards, Pension to Meritorious Sports Persons
    5. Pandit Deendayal Upadhyay National Sports Welfare Fund
    6. National Sports Development Fund; and
    7. Running Sports Training Centres through Sports Authority of India

    Way forward

    • Sports is a state subject and therefore uniformity in sports specific activities of various states in India is extremely important for providing equal sporting opportunities to all the citizens of the country.
    • We have to take collective action to create a system and a proper environment whereby the young talent is spotted and developed in right earnest.
    • Integration of sports with education to introduce sports culture in India is the need of the hour.
    • The allocation of funds to sport, as a percentage of budget, can be increased for broad-basing sports in this country.
    • There is also a need to develop a culture in whole country by spreading awareness in society by telling benefit of sports in life.
  • Death Penalty

    Context

    On April 22, a Bench of the Supreme Court of India, led by Justice U.U. Lalit, decided to critically examine the routine and abrupt way in which trial judges often impose the death penalty on convicts.

    Individualistic approach

    • The challenge before the Court in the instant case of Irfan vs State of Madhya Pradesh was to identify the mitigating circumstances and to ensure a convict-centric approach so that the imposition of capital punishment becomes rarer, fairer, and principled.
    • According to the Court, “a ‘one size fit for all’ approach while considering mitigating factors during sentencing should end”.
    • Mitigation expert: The Bench indicated the need for mitigation experts to assist trial courts in reaching a correct conclusion on whether one should be sent to the gallows or not.
    • The Court seemed to think that an individualistic approach that examines the social, economic, emotional, and genetic components that constituted the offender rather than the offence, would go a long way in evolving a just and judicious sentencing policy.
    • An analysis of the possible reasons to avert the death penalty is reflected in a series of recent verdicts such as Lochan Shrivas vs State of Chhattisgarh (2021) and Bhagchandra vs State of Madhya Pradesh (2021).
    • These reasons might include socio-economic backwardness, mental health, heredity, parenting, socialisation, education, etc.

    Background of the humane and reformist framework

    • The special reason: According to Section 354(3) in the Code of Criminal Procedure, while imposing the capital punishment, the judge should specify “the special reasons” for doing so.
    • It was in Bachan Singh vs State of Punjab (1980) that the Constitution Bench suggested a humane and reformist framework in the matter.
    • Bachan Singh requires the trial courts not only to examine the gravity of the offence but also the condition and the ‘reformability’ of the accused. 
    • Not unconstitutional: The Court, in Bachan Singh, refused to declare the death penalty as unconstitutional. 
    • It abundantly implied that no person is indubitably ‘irreformable’.
    • It had the effect of practically undoing the death penalty provision, if taken in its letter and spirit.
    • Person-centric approach: This person-centric approach, for its materialisation, needs a different judicial acumen that recognises the convict in her multitudes.

    Is the Bachan Singh doctrine followed?

    • The Bachan Singh principle was followed more in its breach than in compliance even by the Supreme Court.
    • In Ravji vs State of Rajasthan (1995), the Supreme Court said that it is the nature of the crime and not the criminal which is germane for deciding the punishment.
    • Several other cases also were decided by ignoring the Bachan Singh doctrine, as noted by the Supreme Court itself in Santhosh Kumar Satishbhushan Bariyar vs State of Maharashtra (2009) and Rajesh Kumar vs State (2011).
    • This egregious judicial error will have to be kept in mind while the Court revisits the issues related to mitigating factors and individual-centered sentencing policy in the Irfan case.
    • Shortcomings of Bachan Sing: Bachan Singh did not, in concrete terms, elaborate on the mitigating factors and the methods to gather them to avert the death penalty.
    • Nor did it explain the issues such as burden of proof and standard of proof in detail.

    Issue of misuse and overuse

    • Misuse of sedition provision: The Indian experience shows that whenever the Court tries to dilute the harshness of penal provisions by a balancing approach, instead of striking down the provision, the instrumentalities of the state (including the police, the prosecution and the court) continue to overuse or misuse the provisions.
    • The Supreme Court endorsed the validity of the sedition law (Section 124A of the Indian Penal Code) with a rider that it could be invoked only when there is an incitement to violence.
    • But the state seldom acts based on interpretation of the law. 
    •  Many were booked for the charge of sedition since then for mere words, innocent tweets or harmless jokes.

    Social implications

    • Disproportionate effect on the poor: In India, as elsewhere, the poor, rather than the rich, are sent to the gallows.
    • Ineffectiveness of legal assistance: In Williams vs Taylor (2000), the U.S. Supreme Court said that failure of the defence lawyer in highlighting the mitigating factors that could lead to avoidance of capital punishment makes the legal assistance ineffective. 
    • Therefore, it infringes constitutionally guaranteed rights.
    • In the Indian scenario, the legal assistance received by the poor facing serious charges is far from satisfactory.
    • Mitigating factors not placed: And in the matter of sentencing too, the mitigating factors are either not placed before the trial court or not persuaded adequately to convince the trial judge to avoid the death penalty.

    Way forward

    • Taking empirical lessons from the fate of Bachan Singh, the Supreme Court may have to now ask the more fundamental question posed and negatived in Bachan Singh — the question of the constitutional validity of death penalty.
    • Comprehensive report: The Court, in the instant case, will have to evolve a legal device for procurement of a comprehensive report dealing with the socio-economic and hereditary backgrounds of the accused from experts in the fields of social work, psychiatry, psychology, anthropology, etc.
    • Violation of Article 21: The Court may have to revisit Bachan Singh itself in so far as it refused to declare the death penalty as violative of the right to life envisaged under Article 21 of the Constitution.
    • Across the world, 108 nations have abolished death penalty in law and 144 countries have done so in law or practice, according to the Amnesty Report of 2021.
    • Judicial errors: In the Indian context, where judgmental error is quite frequent and the quality of adjudication is not ensured, what is required is a judicial abolition of death penalty. 

    Conclusion

    The present matter will have to be referred to a larger Bench, with a view to rectify the foundational omission in Bachan Singh — of not explicitly declaring capital punishment as unconstitutional.

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  • [Burning Issue] China’s Debt Trap Diplomacy

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    Context

    • Sri Lanka continues to grapple with its worst-ever economic crisis as it has defaulted on all of its external debt of about $51 billion – after running out of foreign exchange for imports, calling it the last resort.
    • So while domestic policies are largely being seen as reasons for Sri Lanka’s economic collapse, many also blame China for the unprecedented crisis in the island nation.
    • Defaults over China’s infrastructure loans to Sri Lanka, especially the financing of the Hambantota port are being cited as factors leading to the crisis.

    In this article, we will try and understand China’s lending model and the reasons it is coming under increasing criticism from low & middle-income countries against unsustainable debt.

    American statesman John Adams, who served as president from 1797 to 1801, famously said, “There are two ways to conquer and enslave a country: One is by the sword; the other is by debt.” China, choosing the second path, has embraced colonial-era practices and rapidly emerged as the world’s biggest official creditor.

    What is Debt Trap Diplomacy?

    • Loans to repay loans: The debt trap is a situation where one is forced to over consume loans to repay your existing debts.
    • Political leverage is exploited: Debt-trap diplomacy is a term in IR which describes a creditor country or institution extending debt to a borrowing nation partially, or solely, to increase the lender’s political leverage. The term was coined by an Indian academic Brahma Chellaney.
    • IMF and Chinese tools of coercion: Although the term is most commonly associated with China, it has also been applied to the International Monetary Fund (IMF); both allegations, however, are disputed.

    Features of such diplomacy

    • Lending is initially very indiscriminate
    • Terms of the loans are often not publicized
    • More conditional loans are offered to repay and restructure old debts
    • Such loans benefit the lender by undue exploitation of the borrower
    • Interest rates are hefty and unrealistic
    • It seeks sovereign guarantee and sovereign leases
    • Default leads to geo-strategic overtakes ex. PLA Navy being deployed at Hambantota Port

    Roots of such policy

    • There are many cases of countries in the 19th and early 20th century, the high-water mark of European colonialism and imperialism, using debt-funded infrastructure projects to embark on rapid modernisation.
    • For instance, the French-led design and construction of the Suez Canal.
    • It involved the issuing of £3.3 million’s worth of Egyptian bonds in 1863 on behalf of the Egyptian Khedive.
    • In return Egypt, committed to provide labour and a 99-year operational lease to France (much similar to the terms of Hambantota Port).
    • One of the earliest successes of China’s debt-trap diplomacy was in securing 1,158 square kilometers of strategic Pamir Mountains territory from Tajikistan in 2011 in exchange for debt forgiveness.

    Sri Lankan Case

    • Using its own brand of “strategic investments” China is now forcing smaller states to abide by its dictates.
    • Sri Lanka’s case is a text-book example of the Chinese modus operandi in pursuing its strategic interests.
    • In July 2017, the Sri Lankan government and CMPort (China Merchants Port Holdings Company), a state- owned Chinese company, signed an agreement.
    • It granted China a 99-year lease of the Hambantota harbour and 15,000 acres of land in exchange for $1.2 billion.

    How does China seek to achieve this?

    • Belt and Road Initiative (BRI): The BRI is a trillion-dollar initiative, which makes large-scale loans available to countries seeking to build infrastructure projects.
    • Ignorance to creditworthiness: Instead of first evaluating a borrower country’s creditworthiness, including whether new loans could saddle it with an onerous debt crisis, China is happy to lend.
    • Secrecy of negotiations: The China allegedly keep negotiations very secret and non-competitive pricing of projects.
    • Bidding is closed-door: Contracts go to Chinese state-owned or state-linked companies which charge significantly above-market prices.
    • Bribing of the govt: China also shows up with bribes to senior leaders in countries, in exchange for infrastructure projects.

    Worst outcomes

    • Sri Lanka: It was forced to hand over control of the Hambantota port project to China for 99 years, after it found itself under massive debt owed to Beijing.
    • Pakistan: It is literally sold to into the hands of the China over the development of China Pakistan Economic Corridor (CPEC).
    • Gulf region: Similarly, in exchange for relief, China constructed its first military base in Djibouti.
    • India: SL allowed China control over a key port positioned at the doorstep of its regional rival India, and a strategic foothold along a key commercial and military waterway.

    Chinese prophecy of its policy

    • Anti-China sentiments: Communist Party of China calls it a “meme” which became popular due to “human negativity bias” based on anxiety about the rise of China as a global superpower.
    • Obsession for China over the West: Many nations, Pakistan being the best example finds China as an attractive partner for their development.
    • Success of such loans: Most of the debtor countries voluntarily agreed to the loans and had positive experiences working with China.
    • Already existing debt distress: CCP conforms that Chinese loans are not currently a major contributor to the already existing debt distress in Africa.
    • Debt-Restructure Policy: China restructured or waived loan payments for 51 debtor nations (most of the BRI’s participants) without seizing state assets.
    • Case par excellence: Hambantota is an exception for China’s since the project was proposed by former Sri Lankan president Mahinda Rajapaksa, not Beijing.
    • Its borrowers who seek loans: China’s leverage in debt renegotiation is often exaggerated, and was realistically limited in power.
    • Waivers are considered: Considering the particular case of Pakistan, asset seizures are a very rare occurrence, and debt write-off is the most common outcome.

    Why do countries go for Chinese offers?

    • Distressed under-developed /developing countries: In retrospect, China’s designs might seem obvious. But the decision by many developing countries to accept Chinese loans was, in many ways, understandable.
    • Negligence by World Bank and IMF: Most developed nations got neglected by institutional investors, since they had major unmet infrastructure needs. Countries that don’t want to go the IMF for a bailout when they’re in trouble, they went to China instead.
    • Former colonists turned blind eyes: Most African and Asian countries turned troubled after de-colonization. Their finances were literally sucked up by colonists in post WW2 recovery.
    • China empathized when nobody else did: So when China showed up, promising benevolent investment and easy credit, they were all in.
    • Blaming Beijing is the easier option:  It became clear only later that China’s real objectives were commercial penetration and strategic leverage; by then, it was too late, and countries were trapped in a vicious cycle.

    Do you know?

    The State Bank of Pakistan (SBP), the central bank is no more a sovereign bank unlike the RBI. It has now become a commercial bank!

    Has India taken any loans from China?

    Ans. No. It’s the AIIB Loan.

    • India has not entered into any loan agreement directly with China.
    • However, it has been the top borrower of Asian Infrastructure Investment Bank (AIIB), a multilateral bank wherein China is the largest shareholder (26.6% voting rights) and India is the second (7.6% voting rights). 
    • China’s vote share allows it veto power over decisions requiring super-majority.
    • Loans provided to India could also pave the way for Chinese firms to enter and gain experience in the promising Indian infra market.

    Impact of Chinese policy on India

    • Almost all neighbours got lured: Most of India’s neighbours have fallen prey to China’s debt trap, and ceded to China’s $8 tn project – One Belt One Road Initiative (OBOR).
    • India’s sovereignty concerns disregarded: CPEC requires India to accept that the Kashmir-controlled Pakistan region, is Pakistan, because that’s where some of the projects are.
    • Perception change against traditional partners: China through OBOR can hence increase India’s political cost of dealing with its neighbours. Ex. Bangladesh now cherishes Chinese affinity more than its liberator.

    A critical assessment

    • Of course, extending loans for infrastructure projects is not inherently bad: The projects that China is supporting are often intended not to support the local economy, but to facilitate Chinese access to natural resources, or to open the market for its low-cost exports.
    • Several projects are now bleeding money: In a sense, it is even better for China that the projects don’t do well. After all, the heavier the debt burden on smaller countries, the greater China’s own leverage becomes.
    • Chinese morale are now high enough to prey its small neighbours: China has used its clout to push Cambodia, Laos, Myanmar, and Thailand to block a united ASEAN stand against China’s aggressive pursuit of its territorial claims in the South China Sea.
    • China is establishing its monopoly: In financially risky countries, China now demands majority ownership up front. For example, China clinched a deal with Nepal this month to build another largely Chinese-owned dam there, with its state-run China Three Gorges Corporation taking a 75% stake.
    • Debt for a debt has become crème de la crème: In exchange for rescheduling repayment, China is requiring countries to award it contracts for additional projects, thereby making their debt crises interminable.
    • China is becoming increasingly opportunistic and seizing assets: Countries that are not yet ensnared in China’s debt trap should take note – and take whatever steps they can to avoid it.
    • Deadly obligations are pre-conditions: China does obligate the borrower to exclude the Chinese debt from any multilateral restructuring process, such as the Paris Club of official bilateral creditors, and from any “comparable debt treatment.”
    • China has taken over exclusive development rights:  In small island nations, China has converted big loans into acquisition of entire islets through exclusive development rights. It took over a couple of islets in the Indian Ocean archipelago of the Maldives and one island in the South Pacific nation of the Solomon Islands.
    • Some developing economies are regretting their decision: Protests have erupted over widespread joblessness, purportedly caused by Chinese dumping of goods, which is killing off local manufacturing, and exacerbated by China’s import of workers for its own projects.
    • Rise of neo-imperialism: By integrating its foreign, economic, and security policies, China is advancing its goal of fashioning a hegemonic sphere through security links. If states are burdened with high levels of debt as a result, their financial woes only aid China’s neocolonial designs.

    Do you know?

    Yuan is now the official currency of Zimbabwe!

    Way forward

    • India needs to loop in: Getting ready to challenge China’s profile by enhancing its own regional role as an economic and security actor is the need of the hour for India.
    • Ring-fencing of its neighbours: India also needs to maintain its influence in the region and counter the growing debt-trap initiatives via cooperative strategies and humanitarian aid, a move aimed to ring-fence its strategic interests.
    • Countering China in maritime sphere: At a time when China is strangling India in the north with its attempts to change facts on the ground, it is imperative for India to strategically think of using the maritime sphere to break Beijing’s growing dominance in its periphery.
    • Alternatives for finances: India needs to push these small countries to improve its ties with the US and the West. The so called ‘assistance’ should be as per international standards or as per the interest rate imposed by the World Bank, the Asian Development Bank and others.

    Conclusion

    • Thus it is very much clear that- China often begins as an economic partner of a small, financial weak country and then gradually enlarges its footprint in that state to become its economic and political master. 
    • Atmanirbharta (Self-reliance) is the key to all such miseries.
  • Mother Nature a ‘living being’ with legal entity: Madras HC

    Holding that it is the right time to confer juristic status to ‘Mother Nature’, Justice S. Srimathy of the Madurai Bench of Madras High Court invoked the ‘parens patriae jurisdiction’, and declared ‘Mother Nature’ as a ‘living being’ having the status of a legal entity.

    What is the news?

    • The Madras HC observed that ‘Mother Nature’ was accorded the rights akin to fundamental rights, legal rights, constitutional rights for its survival, safety, sustenance and resurgence in order to maintain its status and also to promote its health and well-being.

    Legal rights for nature: A backgrounder

    • The movement for legal personhood for the environment and animals began in the 1970s.
    • This concept was articulated by Christopher D. Stone in his thesis, Should Trees Have Standing.
    • In this compelling piece, the author makes an argument for the environment to have independent legal rights, much like what was granted by the judgment of the Uttarakhand High Court in 2017.
    • He highlights how the theory of rights has developed over the years and that many inanimate objects have both rights and legal duties. They can sue and be sued.

    What is the case for Madras HC’s personification of nature?

    • The Madras HC has made a personification of nature that focuses on the life-giving and nurturing aspects of nature by embodying it, in the form of the mother.
    • It observed that the court is hereby declaring ‘Mother Nature’ a ‘living being’ having the status of a legal person with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve it.
    • The State and Central governments are directed to protect ‘Mother Nature’ and take appropriate steps in this regard in all possible ways.

    A different course: Ecological Jurisprudence

    • The onset of climate change and the potential mass extinction of species is accompanied by the gradual closing window of opportunity to take meaningful action.
    • Activists around the world are calling for anthropocentric legal and governance systems to be replaced with ecocentric ones.
    • The last 15 years have seen a dramatic increase in the number of laws based on ecological jurisprudence.
    • Ecological jurisprudence is a philosophy that sees nature not as a set of objects to be exploited but as a community of subjects (humans and non-humans) who are connected through interdependent, reciprocal relationships.

    India’s typical case

    • In 2017, the Uttarakhand HC ruled (in two separate orders) that the Ganga, the Yamuna, their tributaries, and the glaciers and catchments feeding these rivers in Uttarakhand had rights as a “juristic/legal person/living entity”.
    • In 2018, the same HC ruled that the entire animal kingdom had rights similar to that of a living person (Narayan Dutt Bhatt vs Union of India).
    • In March 2020, the Punjab and Haryana High Court passed an order declaring the Sukhna Lake in Chandigarh city a living entity, with rights equivalent to that of a person.

    Beyond Rights

    • Law is a modern human construct. It not only talks in the language of rights and duties that only humans understand but also operationalizes them in a way that can further entrench human-centeredness.
    • In most cases where nature’s rights are recognized in law, they have done so by extending to it the concept of “personhood” in other words, akin to humans and, therefore, having human rights.
    • Hence, any such movement on recognizing the rights of the rest of nature must challenge the fundamental forms of injustices, including capitalism, stateism, anthropocentrism and patriarchy.

    Significance of such status

    • These rights-based laws granting legal personhood for nature aim to shift the legal status of the natural world from being human property to living entities in their own right and subjects of law.
    • This guarantees their right to exist, thrive, evolve and maintain their natural cycles.
    • These rights are not conferred by humans; it is a recognition that these rights have always existed.
    • It lays upon humans the duty to act as guardians for the more-than-human world.

    Issues of implementation

    • Assuming that these rights are recognised, nature or any of its entity cannot represent itself in a court of law.
    • Moreover there is the issue of custodianship.

    What would account for violations?

    • The Uttarakhand court order did not mention what amounted to violation of rights of rivers.
    • In order to be able to truly exercise the rights and implement appropriate redressal, there is a need for a comprehensive definition of the actions that amount to “violation of the rights”.
    • Say, the violation of the rights of rivers may be defined as “any obstruction or impediment that disables the entity from performing its essential ecological functions”.

    Restitution and compensation

    • The New Zealand law has an extensive section lending itself to restitutive, restorative and compensatory action.
    • It acknowledged the government’s decisions and actions for more than a century that resulted in the violation of the health of the Whanganui and the rights, culture and well-being of the indigenous people living along the river.
    • Several specific examples were given, including the dismantling of traditional structures for fishing and river use, a hydroelectric project and mining.
    • Such an acknowledgment is a necessary first step towards seeking appropriate restitutive and compensatory measures.

    Another question: Bioregional Governance

    • Recognizing river ecosystems or other entities of nature as having rights offers the possibility of managing and governing habitats based on the ecological realities of the region.
    • It brings out the bizarre fact that the human-drawn nation state, and political lines on maps in various parts of the world have created conflict situations or disrupted ancient cultural and ecological flows and relations.
    • We need to begin reimagining governance from a bioregional governance point of view.
    • This would also mean bridging the gap between the customary ways of decision making and the current legal frameworks.
    • There is a need for more imaginative lawyers, activists and judges to help move towards an eco-centric and diverse legal framework.

    Way forward

    • There is a need for a comprehensive system to implement and protect their rights.
    • The rights can be safeguarded using the principles of custodianship.
    • The Uttarakhand High Court order named several government functionaries and a couple of independent lawyers as “parents”.
    • An alternative solution is that custodianship or guardianship be given to a body of local communities associated with the river.
    • These communities have traditional or customary rights of the river such as fisherfolk, farmers along the riverbank, and people directly engaged in river-related services.

     

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  • What are the rules for resignation and reinstatement of an IAS officer?

    A decorated Indian Administrative Service (IAS) officer and UPSC CSE topper from 2010, who resigned from the service in protest against the “unabated” killings in Kashmir in 2019, has been reinstated.

    What rules apply when an IAS officer chooses to resign?

    • A resignation is a formal intimation in writing by an officer of his/her intention or a proposal to leave the IAS, either immediately or at a specified date in the future.
    • Guidelines of the Department of Personnel, the cadre controlling department for the IAS, say that a resignation has to be clear and unconditional.
    • The resignation of an officer of any of the three All-India Services — IAS, the IPS and IFoS — is governed by Rules 5(1) and 5(1)(A) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958.
    • There are similar rules for resignation of officers belonging to the other central services as well.
    • Resignation from service is entirely different from accepting the government’s Voluntary Retirement Scheme (VRS).

    To whom must the resignation of an IAS officer be submitted?

    • An officer serving in a cadre (state) must submit his/her resignation to the chief secretary of the state.
    • An officer who is on central deputation is required to submit his/her resignation to the secretary of the concerned Ministry or Department.
    • The Ministry/Department then forwards the officer’s resignation to the concerned state cadre, along with its comments or recommendations.

    What happens after the resignation is submitted?

    • The state checks to see if any dues are outstanding against the officer, as well as the vigilance status of the officer or whether any cases of corruption etc. are pending against him/her.
    • In case there is such a case, the resignation is normally rejected.
    • Before forwarding the resignation to the central government, the concerned state is supposed to send information on the issues of dues and vigilance status, along with its recommendation.
    • The resignation of the officer is considered by the competent authority, i.e., the central government, only after the recommendation of the concerned cadre has been received.
    • The competent authorities are: Minister of State at the DoPT in respect of the IAS, the MHA in respect of the IPS, and the MoEFCC in respect of the Forest Service.
    • Being the minister in charge of the DoPT, the Prime Minister himself takes decisions currently in respect of the IAS.

    Under what circumstances is a resignation accepted or rejected?

    • A circular issued by the DoPT on February 15, 1988 regarding resignation says that it is not in the interest of the government to retain an officer who is unwilling to serve.
    • The general rule, therefore, is that the resignation of an officer should be accepted — except in certain circumstances.
    • The references are made regarding the merit of the disciplinary case pending against the Government servant and whether it would be in the public interest to accept the resignation.
    • In some cases, resignations have been rejected because disciplinary cases were pending against officers.
    • In such cases, concurrence of the Central Vigilance Commission (CVC) is obtained.
    • The government also checks whether the concerned officer had executed any time-bond to serve the government.

    Is an officer allowed to withdraw a resignation that has already been submitted?

    • Rule 5(1A)(i) of the amended DCRB Rules says the central government may permit an officer to withdraw his/her resignation “in the public interest”.
    • An amendment in the Rules in 2011 states the member is allowed to resume duty as a result of permission to withdraw the resignation is not more than 90 days”.
    • The request for withdrawal of resignation shall NOT be accepted where a member of the Service resigns to be associated with any active politics/ political parties.

    And under what circumstances is the withdrawal of an officer’s resignation accepted?

    • The 2011 guidelines say that if a resigned officer resignation sends an intimation in writing withdrawing it before its acceptance by the competent authority, the resignation will be deemed to have been automatically withdrawn.
    • The officer under discussion had resigned on January 9, 2019, but his resignation was not processed.

     

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  • What are Heatwaves?

    India is gripped in the wrath of a long spell of heatwaves that too in the early month of April.

    What is a Heatwave and when is it declared?

    • Heatwaves occur over India between March and June.
    • IMD declares a heatwave event when the maximum (day) temperature for a location in the plains crosses 40 degrees Celsius.
    • Over the hills, the threshold temperature is 30 degrees Celsius.

    How are they formed?

    • Heatwaves form when high pressure aloft (3,000–7,600 metres) strengthens and remains over a region for several days up to several weeks.
    • This is common in summer (in both Northern and Southern Hemispheres) as the jet stream ‘follows the sun’.
    • On the equator side of the jet stream, in the upper layers of the atmosphere, is the high pressure area.
    • Summertime weather patterns are generally slower to change than in winter. As a result, this upper level high pressure also moves slowly.
    • Under high pressure, the air subsides (sinks) toward the surface, warming and drying adiabatically, inhibiting convection and preventing the formation of clouds.
    • Reduction of clouds increases shortwave radiation reaching the surface.
    • A low pressure at the surface leads to surface wind from lower latitudes that brings warm air, enhancing the warming.
    • Alternatively, the surface winds could blow from the hot continental interior towards the coastal zone, leading to heat waves.

    Following criteria are used to declare heatwave:

    To declare heatwave, the below criteria should be met at least in 2 stations in a Meteorological subdivision for at least two consecutive days and it will be declared on the second day.

    1. a) Based on Departure from Normal
    • Heat Wave: Departure from normal is 4.5°C to 6.4°C
    • Severe Heat Wave: Departure from normal is >6.4°C
    1. b) Based on Actual Maximum Temperature (for plains only)
    • Heat Wave: When actual maximum temperature ≥ 45°C
    • Severe Heat Wave: When actual maximum temperature ≥47°C

    How long can a heatwave spell last?

    • A heatwave spell generally lasts for a minimum of four days. On some occasions, it can extend up to seven or ten days.
    • The longest recorded heatwave spell, in recent years, was between 18 and 31 May 2015.

    Impact of Heat Waves:

    Heat Strokes: The very high temperatures or humid conditions pose an elevated risk of heat stroke or heat exhaustion.

    Older people and people with chronic illness such as heart disease, respiratory disease, and diabetes are more susceptible to heatstroke, as the body’s ability to regulate heat deteriorates with age.

    Increased Healthcare Costs: Effects from extreme heat are also associated with increased hospitalisations and emergency room visits, increased deaths from cardio-respiratory and other diseases, mental health issues, adverse pregnancy and birth outcomes, etc.

    Lessens Workers’ Productivity: Extreme heat also lessens worker productivity, especially among the more than 1 billion workers who are exposed to high heat on a regular basis. These workers often report reduced work output due to heat stress.

    Risk of Wildfires: The heat domes act as fuel to wildfires, which destroys a lot of land area every year in countries like the US.

    Prevents Cloud Formation: The condition also prevents clouds from forming, allowing for more radiation from the sun to hit the ground.

    Effect on Vegetation: The trapping of heat can also damage crops, dry out vegetation and result in droughts.

    Increased Energy Demands: The sweltering heat wave also leads to rise in energy demand, especially electricity, leading to pushing up rates.

    Power Related Issues: Heat waves are often high mortality disasters.

    Avoiding heat-related disasters depends on the resilience of the electrical grid, which can fail if electricity demand due to air conditioning use exceeds supply.

    As a result, there is the double risk of infrastructure failure and health impacts.

    • Initiatives Taken:
      • Global:
        • Global forums dealing with climate change issues—such as the World Health Organization, World Economic Forum, First Global Forum on Heat and Health, and the Global Forum for Environment-OECD—also focus on heat waves by investing in research on health risks of extreme heat, climate and weather information, advice on surviving heat waves, partnerships and capacity building, and communications and outreach.
      • Indian:
        • The National Disaster Management Authority (NDMA) has issued guidelines on dealing with heatwaves.
          • However, India does not recognise heatwaves as a disasterunder its Disaster Management Act (2005).

    Way Forward

    • Adopting A More Sensitive Approach: The impact of such excessive heat needs to be understood from the point of view of common people — daily labourers; farmers; traders; fishermen etc.
      • Beyond numbers and graphs that capture the impact of the climate crisis, the human experience of living in oppressive heat needs to be understood by policymakers and measures should be taken accordingly.
    • Cooling Shelters: The government should come out with a policy to deal with the suffering and disability caused by heat extremes in different parts of the country.
      • Water kiosks, staggered outdoor work hours, cool roofs for buildings and homes are certain things that should be put in place immediately.
      • A number of emergency cooling shelters can be opened so that people without domestic air conditioning units can escape the heat.
        • Portable air-conditioning units, along with fans and even ice are also useful.
    • Passive Cooling to Reduce Urban Heat Islands: Passive cooling technology, a widely-used strategy to create naturally ventilated buildings, can be a vital alternative to address the urban heat island for residential and commercial buildings.
      • The IPCC report cites ancient Indian building designs that have used this technology, which could be adapted to modern facilities in the context of global warming.
    • Action Plans Similar to Ahmedabad: As per the IPCC Report, Ahmedabad has shown the way to combat heat extremes by heat-proofing buildings.
      • After the heat action plan was implemented in 2013 in Ahmedabad, heat-related mortality reduced by 30% to 40% over the years. Similar plans like that of Ahmedabad can be implemented in vulnerable regions.
    • Replacing Dark Roofs: A big reason that cities are so much hotter than rural areas is that they are covered by dark roofs, roads and parking lots that absorb and retain heat.
      • One of the long term solutions can be replacing the dark surfaces with lighter and more reflective materials; it will result in a comparatively cooler environment.

     

     

  • Keen on lifting AFSPA from NE: PM

    The PM informed that AFSPA could be withdrawn partially from Assam, Manipur and Nagaland (from April 1) due to peaceful conditions since 2014.

    What is the news?

    • The AFSPA will now be applicable fully only in 31 districts and partially in 12 districts of four states in the Northeast Assam, Nagaland, Manipur and Arunachal Pradesh.
    • These four states together comprise 90 districts.
    • The AFSPA was completely withdrawn in Meghalaya in 2018, Tripura in 2015 and Mizoram in the 1980s.

    Immediate reasons for withdrawal

    • The Northeast has lived under the shadow of AFSPA for nearly 60 years, creating a feeling of alienation from the rest of the country.
    • The move is expected to help demilitarise the region; it will lift restrictions of movements through check points and frisking of residents.
    • Years of AFSPA regime has had psychological consequences, trauma and alienation of the people.

    AFSPA: A Backgrounder

    • The AFSPA, 1958 came into force in the context of insurgency in the North-eastern States decades ago.
    • It provides “special power” to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces etc.
    • It has been long contested debate whether the “special powers” granted under AFSPA gives total immunity to the armed forces for any action taken by them.

    Armed Forces (Special Powers) Act, 1958

    • Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in “disturbed areas.”
    • AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
    • The Act further provides that if “reasonable suspicion exists”, the armed forces can also arrest a person without warrant; enter or search premises without a warrant; and ban the possession of firearms.

    What are the Special Powers?

    The ‘special powers’ which are spelt out under Section 4 provide that:

    (a) Power to use force, including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;

    (b) Power to destroy structures used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;

    (c) Power to arrest without warrant and to use force for the purpose;

    (d) Power to enter and search premises without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property etc.

    What are the Disturbed Areas?

    • A disturbed area is one that is declared by notification under Section 3 of the AFSPA.
    • As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.

    Who can declare/notify such areas?

    • The Central Government or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area.
    • A suitable notification would have to be made in the Official Gazette.

    Presently active ‘Disturbed Areas’

    • AFSPA is currently in force in Assam, Nagaland, Manipur, 3 districts of Arunachal Pradesh, and areas falling within the jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam.
    • In Jammu and Kashmir, a separate law Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 has been in force.

    AFSPA: Is it a License to Kill?

    While the operation of the Section has been controversial in itself, it has attracted much criticism when actions have resulted in the death of civilians.

    • Power to kill: Section 4 of the Act granted officers the authority to “take any action” even to the extent to cause the death.
    • Protection against prosecution: This power is further bolstered by Section 6 which provides that legal can be instituted against the officer, except with the previous sanction of the Central Government.

    Supreme Court’s Observations over AFSPA

    • These extra-judicial killings became the attention of the Supreme Court in 2016.
    • It clarified that the bar under Section 6 would not grant “total immunity” to the officers against any probe into their alleged excesses.
    • The judgment noted that if any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offense.
    • The Court further noted that if an offense is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the CrPC.

    Constitutionality of AFSPA

    • Attempts have been made to examine the constitutionality of the Act on the grounds that it is contravention to the:
    1. Right to Life and Personal Liberty (Article 21) and
    2. Federal structure of the Constitution since law and order is a State subject

    Recommendations to repeal AFSPA

    (1) Justice B.P. Jeevan Reddy Commission

    • The 2004 Committee headed by Justice B.P. Jeevan Reddy, the content of which has never officially been revealed by the Government, recommended that AFSPA be repealed.
    • Additionally, it recommended that appropriate provisions be inserted in the Unlawful Activities Prevention Act, 1967 (UAPA) instead.
    • It also recommended that the UAPA be modified to clearly specify the powers of the armed forces and paramilitary forces and grievance cells should be set up in each district where the armed forces are deployed.

    (2) ARC II

    • The Administrative Reforms Commission in its 5th Report on ‘Public Order’ had also recommended that AFSPA be repealed.
    • It recommended adding a new chapter to be added to the Unlawful Activities Prevention Act, 1967.
    • However, the recommendation was considered first and then rejected.

    Other issues with AFSPA

    (1) Sexual Misconduct by Armed Forces

    • The issue of violation of human rights by actions of armed forces came under the consideration of the Committee on Amendments to Criminal Law (popularly known as Justice Verma Committee) set up in 2012.
    • It observed that- in conflict zones, legal protection for women was neglected.

    (2) Autocracy

    • The reality is that there is no evidence of any action being taken against any officer of the armed forces or paramilitary forces for their excesses.

    Caution given by the Supreme Court

    A July 2016 judgment authored by Justice Madan B. Lokur in Extra Judicial Execution Victim Families Association quoted the “Ten Commandments” issued by the Chief of the Army Staff for operations in disturbed areas:

    1. Definite circumstances: The “power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances”.
    2. Declaration preconditions: These preconditions include a declaration by a high-level authority that an area is “disturbed”.
    3. Due warning: The officer concerned decides to use deadly force on the opinion that it is “necessary” to maintain public order. But he has to give “due warning” first.
    4. No arbitrary action: The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area”.
    5. Minimal use of force: The armed forces must use only the “minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.”
    6. Empathy with perpetrators: The court said that: the people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration.
    7. People friendliness: The court underscored how the Commandments insist that “operations must be people-friendly, using minimum force and avoiding collateral damage – restrain must be the key”.
    8. Good intelligence: It added that “good intelligence is the key to success”.
    9. Compassion: It exhorted personnel to “be compassionate, help the people and win their hearts and minds. Employ all resources under your command to improve their living conditions”.
    10. Upholding Dharma (Duty): The judgment ended with the final Commandment to “uphold Dharma and take pride in your country and the Army”.

    Conclusion

    • Despite demands by civil society groups and human rights activities, none of the recommendations have not been implemented to date.

     

     

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