💥Join UPSC 2027,2028 Mentorship (August Batch) + XFactor Notes & Microthemes PDF
Talk to Mentor

Civilsdaily

Login

GS Paper: Governance, Transparency & Accountability, Citizens Charters

  • 3 Lakh RTI Pleas pile up across India

    rti

    A good 17 years after India got the Right to Information (RTI) Act, the transparency regime in the country remains a mirage with nearly 3.15 lakh complaints and appeals pending with 26 information commissions across India.

    RTI Pendency in India

    • According to a report by Satark Nagrik Sangathan, the backlog of appeals or complaints is increasing in commissions every year.
    • The number of appeals and complaints pending in 2021 was 2,86,325 with data from 26 commissions and in 2022, it was 3,14,323.
    • The highest number of pending cases was in Maharashtra at 99,722, followed by UP at 44,482, Karnataka at 30,358, the Central Information Commission at 26,724 and Bihar at 21,346.

    What is the Right to Information?

    • RTI is an act of the parliament that sets out the rules and procedures regarding citizens’ right to information.
    • It replaced the former Freedom of Information Act, 2002.
    • Under the provisions of RTI Act, any citizen of India may request information from a “public authority” (a body of Government or “instrumentality of State”) which is required to reply expeditiously or within 30.
    • In case of a matter involving a petitioner’s life and liberty, the information has to be provided within 48 hours.
    • The Act also requires every public authority to computerize their records for wide dissemination and to proactively publish certain categories of information so that the citizens need minimum recourse to request for information formally.

    What led to the introduction of RTI in India?

    There has been a variety of internal and external pressures on governments to adopt RTI.

    • Corruption and scandals: The crisis was brought into force due to a lack of transparency in the working of the government.
    • Modernization and the Information Society: The expansion of the Internet into everyday life has increased the demand for more information by the public, businesses and civil society groups.
    • International pressure: The World Bank, the IMF and others have pressed countries to adopt laws to reduce corruption and to make financial systems more accountable.
    • Wider recognition of Public Interest: Public interest is a nebulous concept, not defined in any freedom of information laws, understandably so, as it is a very subjective concept.

    Governing of the RTI

    The Right to information in India is governed by two major bodies:

    1. Central Information Commission (CIC) – Chief Information commissioner who heads all the central departments and ministries- with their own public information officers (PIO)s. CICs are directly under the President of India.
    2. State Information Commissions (SIC)– State Public Information Officers or SPIOs head over all the state department and ministries. The SPIO office is directly under the corresponding State Governor.

    State and CIC are independent bodies and CIC has no jurisdiction over the SIC.

    (1) Central Information Commission

    • The Commission consists of a Chief Information Commissioner and not more than ten Information Commissioners.
    • At present (2019), the Commission has six Information Commissioners apart from the Chief Information Commissioner.
    • They are appointed by the President on the recommendation of a committee consisting of the PM as Chairperson, the Leader of Opposition in the Lok Sabha and a Union Cabinet Minister nominated by the PM.
    • The CIC/IC shall hold office for such term as prescribed by the Central Government or until they attain the age of 65 years, whichever is earlier. They are not eligible for reappointment.

    Power and functions

    • It is the duty of the Commission to receive and inquire into a complaint from any person regarding information request under RTI, 2005.
    • The Commission can order an inquiry into any matter if there are reasonable grounds (suo-moto power).
    • While inquiring, the Commission has the powers of a civil court in respect of summoning, requiring documents etc.

    (2) State Information Commission

    • The Commission consists of a State Chief Information Commissioner and ten State Information Commissioners.
    • They are appointed by the Governor on the recommendation of the committee consisting of the CM as Chairperson, the Leader of the Opposition in the Legislative Assembly and a state Cabinet Minister nominated by the CM.
    • They should be a person of eminence in public life and should not hold any other office of profit or connected with any political party or carrying on any business or pursuing any profession.
    • Terms of service are similar to that of CIC.

    Constitutional backing of the RTI

    • The Indian constitution has an impressive array of basic and inalienable rights termed as fundamental rights contained in part-III.
    • These include the right to equal protection of the laws and the right to equality before the law, the right to freedom of speech and expression also the right to life and personal liberty.
    • Since RTI, is implicit in the Right to Freedom of Speech and Expression under Article 19 of the Indian Constitution, it is an implied FR.
    • These are backed by the right to constitutional remedies that is, the right to approach the supreme court and high court under Article 32 and 226 respectively in case of infringement of any of FRs.
    • The state is not only under an obligation to respect the FRs of the citizens but also equally under an obligation to ensure conditions under which the right can be exercised.
    • The objective of the right to information act is to protect these constitutional rights.

    Benefits of RTI

    • Greater accessibility of information: A person can seek information from any public authority in the form of copies, floppy disks, sample material etc under RTI.
    • Efficient governance: RTI Act helps us in knowing the efficiency of the government functioning.RTI has become a reality consistent with the objectives of having a stable, honest, transparent and efficient government.
    • Citizen’s participation: Information under RTI can be sought easily by requesting the public officer and assistant public officer in any public authority.
    • Government obligation: Obtaining information from any public authority is obligatory for them.
    • Maintenance of public record: Under RTI Act, it is the duty of public authorities to maintain records for easy access and to publish within 120 days the name of the particular officers who should give the information and in regard to the framing of the rules, regulations etc.
    • Empowerment of Citizens: Every citizen has been empowered to be informed about anything that affects their life directly or indirectly.

    Limitations to the RTI

    • Not an absolute right:  The RTI and Right to Privacy are not absolute rights, both the rights, one of which falls under Article 19(l)(a) and the other under Article 21 can obviously be regulated, restricted and curtailed in the larger public interest.
    • Subjected to restrictions: The RTI, being integral part of the right to freedom of speech, is subject to restrictions that can be imposed upon that right under Article 19 (2).
    • Limitations under the rules: Rule 4 of RTI Act puts word limit (No. of words needed in different language is different to express the same idea) as 250 words.  Word Limit, The Hidden power of Information Officer, is the cause of rejection of an application.
    • Only information already available on record is accessible: The RTI Act provides access only to that information that existent and is available in records of the public authorities.
    • Certain information may constitute contempt of court: Any information, the disclosure of which is expressly barred by any Court of law or tribunal or, which may constitute contempt of Court under the Contempt of Court Act, 1971, cannot be released.
    • Information causes a breach of privilege: The Constitution of India provides some privileges to the Parliament and the State Legislature, so it is clear that such information cannot be issued by the public authority.
    • Information relating to Intellectual Property and trade secrets: Any information, including commercial confidence, trade secrets or intellectual property cannot be disclosed.

    Challenges in exercising RTI

    • Information explosion: Different types of information is sought which has no public interest and sometimes can be used to misuse the law and harass the public authorities e.g. asking for desperate and voluminous information.
    • Popular (mis)use: Some chauvinists file RTI to attain publicity. It is often used as a vindictive tool to harass or pressurize the already burdened public authorities.
    • Rising cases of non-disclosure: Some provisions of Indian Evidence Act provide to hold the disclosure of documents.  Similar is the case with the Official Secrets Act, 1923.
    • Limited ambit of RTI: While the office of the CJI is now under the RTI’s ambit, the CBI is exempt.
    • Threats to whistleblowers: There are rising cases of intimidation, threat and murders of RTI activists. There are no safeguards against the victimisation of the person who makes the complaint.

    Significance of RTI

    • The RTI Act, 2005 did not create a new bureaucracy for implementing the law. Instead, it tasked and mandated officials in every office to change their attitude and duty from one of secrecy to one of sharing and openness.
    • RTI has been seen as the key to strengthening participatory democracy and ushering in people-centred governance.
    • Access to information has empowered the poor and the weaker sections of society to demand and get information about public policies and actions, thereby leading to their welfare.
    • It showed an early promise by exposing wrongdoings at high places, such as in the organisation of the Commonwealth Games, and the allocation of 2G spectrum and coal blocks.

    Way Forward

    It is well recognized that RTI is pathbreaking, but has not proved sufficient, to improve governance in its capacity due to various shortcomings.  We need to improvise a lot on various parameters as discussed under:

    • Speedy disposal: The increasing backlog of cases is exacerbated by the fact that most Commissions are functioning at reduced capacity. The government must ensure the timely appointment of chiefs and members of ICs.
    • Prioritization of cases: There should be a prioritization of cases dealing with information related to life and liberty. Information regarding matters like food distribution, social security, health and other priority issues should be proactively disclosed.
    • Digitalization: Governments should put in place a mechanism for online filing of RTI applications and bring all authorities under one platform.
    • Reducing technicalities: The technicalities of filing an RTI application should be more simplified. The literacy rate of rural India is quite low and thus they find it quite difficult to comply with the procedural.
    • Protecting whistleblowers: There is an urgent need to protect the whistle blowers who are targeted or attacked so easily. The impending bill should be passed or else an ancillary strict measure should be taken in this regard.

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Bringing Business friendly Industrial Laws

    Business

    Context

    • The government’s proposal to bring a “holistic decriminalisation” bill in the Winter Session of Parliament, If gets enacted into law, it will be one of India’s greatest reforms since 1991. One of the objectives of this proposed law is to “end harassment and reduce compliance burden on businesses.

     What is Holistic decriminalisation Bill?

    • A new holistic decriminalisation bill is set to amend burdensome provisions in laws related to businesses.
    • Union Minister of Commerce and Industry, Piyush Goyal said that the Decriminalising sections of various laws will end the harassment faced by businesses and reduce compliance burden. Seeking quick industry feedback on problematic areas that can be covered in the proposed Bill.

    What is the status of existing laws in India?

    • Burden of Imprisonment clauses: Business regulatory universe comprises 1,536 laws, of which more than half, or 843 laws, carry imprisonment clauses. Under these laws, there are 69,233 compliances businesses face as an aggregate, of which almost two out of five, or 26,134, carry imprisonment clauses.
    • Union and state legislations on the compliance: Of the 843 laws with imprisonment clauses, 28.9 percent, or 244 laws, have been enacted by Parliament; the rest by State legislatures and rules. Of the 26,134 compliances that carry imprisonment clauses, a fifth, or 5,239 clauses are situated in Union laws.
    • No institutional support for informal sector: Of the 69 million enterprises in India, only 1 million are formal employers; as a result, the remaining informal enterprises get no access to institutional capital, talent, or supply chains.
    • Smaller the better attitude: India’s predatory and rent-seeking policy infrastructure ensures that businesses choose to remain under the regulatory radar—small may not be beautiful but it is certainly safe. For instance, a small business with 150 employees or more has to deal with 500 to 900 compliances a year, on which it can end up spending up to INR 12-18 lakhs by hiring consultants to be compliant with labour laws, taxes, factories, and so on.
    • Burden of compliance is cost-effective: Creating a regulatory bias against small businesses once a line of scale is crossed, managing a compliance department becomes cost-effective; until then, for the small business owner-manager, compliances becomes a risk-management strategy, almost an economic activity.

    Business

    Why such reforms in business laws are necessary?

    • To attract more investment: When viewed through the lens of the government’s intention to make India an investment destination for global and domestic capital, it would be a reform that should end the endemic of harassment, corruption, and rent-seeking by officials of the Union government.
    • To end corruption at state level: Corruption by officials of state governments will end when criminal provisions in State laws and rules get similarly rationalised; some of these will get rationalised with amendments to Union laws that are enforced by state governments.
    • Encouraging the entrepreneurial spirit: Regulatory framework is cumulative policy actions of the three arms of the State the executive, the legislature, and the judiciary using instruments of legislations, rules, regulations, or orders, to create or raise barriers to a smooth flow of ideas, organisation, money, and, most importantly, the flow of the entrepreneurial spirit.

    Business

    What are the recommendations for Holistic decriminalization?

    • Amend the overreaching laws: Reform all compliances with overarching legislation, across ministries and departments. Smaller steps being taken to ease doing business in India, such as shifting the responsibility under the Legal Metrology Rules from directors to executives, should converge into this single bill.
    • There should be Justifiable imprisonment: Use criminal penalties in business laws with extreme restraint the idea of using a criminal clause as a default option should be done away with and replaced by a justification for imprisonment, including the term in jail.
    • Ending the criminalisation: End the criminalisation of all compliance procedures such as filing on a wrong form or mislabelling.
    • Introducing new laws: Introduce sunset clauses for all imprisonment clauses this needs a new enabling law as a precursor.
    • Bringing extensive Digitisation: Digitise all compliance filings, as has been done by the income tax department.
    • Focus on paperless work: Convert every department that acts as a regulatory body to go paperless and faceless. This should look beyond merely creating a website and uploading records. This will enable automated record reconciliation, identify leakages, detect frauds, and flag discrepancies.
    • More such steps in the right direction: By reducing the compliance burden such that it ends harassment, the government is moving in the right direction. To prevent any policy holes left after the passage of the bill into an act, this is a law that needs to be studied hard, debated well, and only then enacted. Of course, there will be political opposition. It is up to the government to ignore the rhetoric and embrace the solutions for the greater good of the country.

    BusinessConclusion

    • The country is getting ready for third-generation reforms. Among them are reforms that rationalise compliances and imprisonment clauses—retain a handful, reduce or remove most, compound the rest and turn physical imprisonment into financial penalties. The Inspector Raj, expressed through the colonial, corrupt, and rent-seeking policy infrastructure, must be disassembled and jobs, wealth, and large enterprises created.

    Mains Question

    Q. Why current industrial policy and laws are causing the harassment of entreprenuers? Discuss the reforms needed in the light of proposed “ Holistic Discrimination” Bill.

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Classifying Merit and Non merit Freebies

    FreebieContext

    • The debate that began with an RBI 2022 report on state finances followed by Prime Minister Narendra Modi’s comment on revdi culture aka freebies, has garnered substantial attention so much so that the Supreme Court is hearing on this issue. Freebies have now assumed more importance than ever.

    What are freebies?

    • Freebies could be defined as non-merit subsidies. The term Freebies is not new; rather it is a prevalent culture in Indian politics (in the name of socialism).
    • The political parties are always trying to outdo each other in luring the Indian voters with freebies.

    What are Subsidies?

    • Subsidies are money transfers (implicit or explicit) by the government in an attempt to drive prices artificially below market prices.
    • As a National Institute of Public Finance and Policy (NIPFP) study by Sudipto Mundle and Satadru Sirkar puts it, budget subsidies, in particular, are defined as the unrecovered cost of economic and social services.
    • However, all subsidies cannot be easily classified into merit or non-merit.

    FreebieWhat are the objectives behind providing freebies?

    • Welfare state: It could be said that providing freebies empowers the state to, first, deliver welfare as a welfare state should, by providing subsidised merit goods like health and education;
    • Combating poverty: To help households combat poverty (especially in economically stressed times characterised by fewer job opportunities, lower incomes, high inflation, etc.) by providing subsidised public goods like food, electricity, etc.
    • Populist spending: To appeal to the electorate through outright populist spending.

    Question of classification between a merit and a non-merit freebies?

    • Blur Boundary: The boundaries between the aforementioned objectives begin to blur when it comes to classifying one form of freebie as a merit or a non-merit subsidy.
    • Few examples: Are corporate tax cuts non-merit subsidies or a measure to boost investment? 2. Is making bus rides free for women in the national capital a non-merit subsidy or a way to boost women’s mobility and labour-force participation? 3. Are free laptops to students in Tamil Nadu not a way to bridge the digital divide in education?
    • Varying definition: The existing arguments develop an understanding that freebies cannot be defined in a finite context, and that the definition varies across space and economic conditions.

    FreebieHow freebies impact revenue of the state?

    • Adverse impact on revenues: Regardless of which one gets classified as good or bad, freebies are simply expenditures or foregone revenues. Any freebie-induced debt burden could have an adverse effect on the state finances if, one, it hasn’t been properly accounted for through transparent budgeting procedures (including off-budget borrowings in debt calculations)
    • Increase in Fiscal deficit: Either way, they lead to an increase in fiscal deficit whose financing could necessitate taking on debt. It threatens fiscal sustainability, i e, it limits the state’s ability to service its debt-related commitments without making an unrealistic fiscal adjustment.
    • Lack of data leading to leakages: The targeting of beneficiaries to ease the burden on the exchequer is one way to check these expenditures but lack of data has forced a situation wherein leakages and duplication of beneficiaries is commonplace.
    • Jeopardises long-term growth and development: In the absence of adequate avenues of revenue mobilisation, any fiscal adjustment achieved by contracting critical expenditures on the social sector and capital formation further jeopardises long-term growth and development. The emanating risk of fiscal sustainability means a “revdi” today would take a toll on tomorrow’s generation.

    What could be the solution?

    • Setting up an independent fiscal council: Setting up an independent fiscal council that has been recommended by the FRBM Review Committee (2017), and recently constituted Finance Commissions too, including the 15th Finance Commission.
    • Providing information and advisory: FRBM report says, the council will serve both an ex-ante role providing independent forecasts on key macro variables like real and nominal GDP growth, tax buoyancy, commodity prices as well as an ex-post monitoring role, and also serve as the institution to advise on triggering the escape clause and also specify a path of return.
    • Monitoring finance: Such a council should work for the union as well as the states. Monitoring of finances and fiscal rules could also help ensure that states comply with a medium-term fiscal policy framework, which has been long argued for by economists.

    FreebieConclusion

    • Freebies cannot be defined easily, and constitutionally, any state government should be empowered to spend the way it wants, provided the fiscal policy is sustainable. The message from the freebies debate is to make informed economic decisions whilst attending to key development objectives.

    Mains Question

    Q. There is nothing wrong in having social security programme that aims to lift the poor get out of poverty and empower the vulnerable sections of the society. In this context, where do you see the goal of sustainable economic development? Comment.

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Corporate Social Responsibility(CSR) & Social Justice

    SocialContext

    • Since the establishment of the Corporate Social Responsibility (CSR) regime in India under Section 135 of the Companies Act 2013, CSR spending in India has risen from RS.10,065 crore in 2014-15to Rs.24,865crore in 2020-21.But there is no data to verify whether this increase is commensurate with the increase in profits of Indian and foreign (having a registered arm in India) companies.

    What is Corporate Social Responsibility (CSR)?

    • Voluntary spending: Corporate social responsibility (CSR) is a form of international private business self-regulation which aims to contribute to societal goals of a philanthropic, activist, or charitable nature by engaging in or supporting volunteering or ethically oriented practices.
    • Ministry Corporate Affairs: The National Corporate Social Responsibility Data Portal is an initiative by Ministry of Corporate Affairs, Government of India to establish a platform to disseminate Corporate Social Responsibility related data and information filed by the companies registered with it.
    • Companies Act, 2013: The Corporate Social Responsibility concept in India is governed by Section 135 of the Companies Act, 2013 (‘Act’), Schedule VII of the Act and Companies (CSR Policy) Rules, 2014 wherein the criteria has been provided for assessing the CSR eligibility of a company, Implementation and Reporting of their CSR Policies.

    Social

    How CSR helps in achieving social justice?

    • Sustainable Goals: India having the most elaborated CSR mechanism and implementation strategy has started its journey to set a benchmark in attaining sustainability goals and stakeholder activism in nation building.
    • Corporate philanthropy: company donations to charity, including cash, goods, and services, sometimes via a corporate foundation.
    • Community volunteering: company-organized volunteer activities, sometimes while an employee receives pay for pro-bono work on behalf of a non-profit organization
    • Socially-responsible business practices: ethically produced products that appeal to a customer segment.
    • Corporate social marketing: Company-funded behaviour-change campaigns, Company-funded advocacy campaigns, donations to charity based on product sales.

    Why there is need to review the CSR?

    • Declining number: There was also a decline in the number of companies participating in CSR 25,103 in FY2019 to 17,007 in FY2021.
    • Flaw in the law: If a company spends an amount in excess of the minimum 2%, as stipulated, the excess amount is liable to be set off against spending in the succeeding three financial years. Ideally, companies should have been shown courage to spend more than this.
    • Own trusts: many private companies have registered their own foundations/trusts to which they transfer the statutory CSR budgets for utilisation. It is unclear if this is allowed under the Companies Act/CSR rules.
    • Geographical bias: The first proviso to Section 135(5) of the Act is that the company should give preference to local areas/areas around it where it operates. This is logical. However, a report by Ashoka University’s Centre for Social Impact and Philanthropy says that 54% of CSR companies are concentrated in Maharashtra, Tamil Nadu, Karnataka, and Gujarat(receiving the largest CSR spends) while populous Uttar Pradesh and Madhya Pradesh receive little.
    • Spending on environment: Item (iv) of Schedule VII of the Act deals with broader environmental issues to create a countervailing effect. However, an analysis of CSR spending (2014-18)reveals that while most CSR spending is in education (37%) and health and sanitation (29%), only 9% was spent on the environment even as extractive industries such as mining function in an environmentally detrimental manner in several States
    • Incomplete information: The Standing Committee on Finance had observed that the information regarding CSR spending by companies is insufficient and difficult to access. As per the ‘Technical Guide on Accounting’ issued by the Institute of Chartered Accountants of India, a company is only required to mention its CSR spends, non-spend, under-spend, and overspend in the ‘Notes to Accounts’.

    SocialWhat are the suggestions to improve the mechanism of CSR?

    • Centralized platform: There is a need to curate a national level platform centralised by the MCA where all States could list their potential CSR admissible projects so that companies can assess where their CSR funds would be most impactful across India with, of course, preferential treatment to areas where they operate.
    • India Investment Grid: Invest India’s ‘Corporate Social Responsibility Projects Repository’ on the India Investment Grid (IIG) can serve as a guide for such efforts. This model would be very useful for supporting deserving projects in the 112aspirational districts and projects identified by MPs under the Government’s Sansad AdarshGram Yojana.
    • Increase environment spending: Companies need to prioritise environment restoration in the area where they operate, earmarking at least 25% for environment regeneration.
    • Public participation: All CSR projects should be selected and implemented with the active involvement of communities, district administration and public representatives.
    • Transparency: Recommendations by the high-level committee in 2018 should be incorporated in the current CSR framework to improve the existing monitoring and evaluation regime. These include strengthening the reporting mechanisms with enhanced disclosures concerning selection of projects, locations, implementing agencies, etc.; bringing CSR within the purview of statutory financial audit with details of CSR expenditure included in the financial statement of a company, and mandatory independent third party impact assessment audits.
    • Monitoring by government: The MCA and the line departments need to exercise greater direct monitoring and supervision over CSR spend by companies through the line ministries (for public sector undertakings) and other industry associations(for non-public units) instead of merely hosting all information on the Ministry’s website.

    SocialConclusion

    • Corporate social responsibility is an effective tool to address the social and income inequality. Present legal arrangements are toothless and based on voluntary actions. For an effective change CSR spending should be made more transparent and accountable.

    Mains Question.

    Q.Present arrangement of CSR is not yielding the desired result. Enlist the current weakness in CSR spending Suggest the changes needed for efficient implantation of CSR.

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

     

  • District formation in India

    This newscard is an excerpt from the original article published in the DownToEarth.

    What are Districts?

    • India’s districts are local administrative units inherited from the British Raj.
    • They generally form the tier of local government immediately below that of India’s subnational states and territories.
    • A district is headed by a Deputy Commissioner/ Collector, who is responsible for the overall administration and the maintenance of law and order.
    • The district collector may belong to IAS (Indian Administrative Service).
    • Districts are most frequently further sub-divided into smaller administrative units, called either tehsils or talukas or mandals, depending on the region.

    How are new districts carved?

    • The power to create new districts or alter or abolish existing districts rests with the State governments.
    • This can either be done through an executive order or by passing a law in the State Assembly.
    • Many States prefer the executive route by simply issuing a notification in the official gazette.

    Does the Central government have a role to play here?

    • The Centre has no role to play in the alteration of districts or creation of new ones. States are free to decide.
    • The Home Ministry comes into the picture when a State wants to change the name of a district or a railway station.
    • The State government’s request is sent to other departments and agencies such as the Ministry of Earth Sciences, Intelligence Bureau, Department of Posts, Geographical Survey of India Sciences and the Railway Ministry seeking clearance.
    • A no-objection certificate may be issued after examining their replies.

    Why create districts?

    • A district enjoys multiple benefits in terms of endowments from the government for local administration and development.
    • The formation of districts leads to the development of infrastructure, including transportation, telecommunication, water, sanitation, health, education and power facilities.
    • A good infrastructure attracts potential investors and investments.
    • New businesses and industries emerge and existing ones expand.
    • This generates employment opportunities for the citizens in and around the district.

    Challenges

    • The question that arises is what limits a state to declare each place a district.
    • The answer lies in the cost associated with the formation of a district.
    • A district requires installing administrative offices and deploying officers and public servants.
    • This adds to the burden on the government exchequer.

    Way forward

    • It is also essential to consult the local people who are the end beneficiaries of the decision to understand their aspirations and win their confidence.
    • This will potentially mitigate the issues and conflicts between people and government and thereby satisfy the people’s needs at large, which is essential for inclusive growth of state and nation.

    Conclusion

    • In sum, any political change regarding the formation of a district in a state comes with its own advantages and challenges.
    • Thus, the government and policymakers must mull over the decision and perform a cost-benefit analysis before district formation.

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Abortion Right extends to the Cisgenders: SC

    In a significant judgment, the Supreme Court said it was unconstitutional to distinguish between married and unmarried women while allowing abortion when the foetus is between 20-24 weeks.

    What is the news?

    • Going a step further, the court said the term ‘woman’ in the judgment included persons other than cisgender women.

    What is cisgender?

    • The term cisgender is used to define people whose gender identity and expression match the identity assigned to them at birth.
    • When a child is born, it is assigned a gender identity based on its physical characteristics.
    • Many believe that gender is a social construct, and growing up, the child may or may not confirm to the birth identity.
    • For transgender people, their sense of gender identity does not match the one assigned to them at birth.
    • Thus, a cisgender woman is a person who was assigned female at birth and continues to identify as a woman.
    • On the other hand, a child assigned female at birth can feel it identifies more authentically as a man as it grows up.

    Use of gender-inclusive vocabularies in official documents

    • Before India’s Supreme Court used ‘cisgender’ in the context of reproductive rights, last year in June, the US government had replaced the word ‘mothers’ with ‘birthing people’.
    • Those who advocate the use of ‘birthing people’ say it is not just women who give birth.
    • Transmen — a person assigned the female gender at birth but who identifies as a man – and genderqueer people – who identify as neither man nor woman – also give birth.

    Why the word cisgender is important?

    • If there are ‘transgender’ people, there should be a word for those who are not.
    • Giving a label to only one section of the population, especially when that is in the minority, implies that the others are default, ‘normal’, and only that section needs to be labelled.
    • Having distinct words for transgender and cisgender people denotes that both are equally valid, neutral experiences, with neither being an aberration.
    • Also, cis and trans are not the only gender identifiers in use.
    • There are many other terms, such as gender-queer, gender fluid and gender variant.
    • Some also choose not to use the traditionally gender-tied pronouns of he/she/her/his, and go for they/them.

    Criticism of the term

    • Some people, including those working on trans rights, feel terms like ‘cisgender’ belong in the realm of gender theory alone.
    • They feel that their usage can be counterproductive – people are less likely to grasp a message if they have to look up the individual words that make up the message.
    • Others feel that ‘cisgender’ as a counter to ‘transgender’ is restrictive – reinforcing a binary of genders that many choose to reject.

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • What is National Automated Fingerprint Identification System (NAFIS)?

    The Union Home Minister has inaugurated the National Automated Fingerprint Identification System (NAFIS).

    What is NAFIS?

    • NAFIS is developed by the National Crime Records Bureau (NCRB) at the Central Fingerprint Bureau (CFPB) in New Delhi.
    • The project is a country-wide searchable database of crime- and criminal-related fingerprints.
    • The web-based application functions as a central information repository by consolidating fingerprint data from all states and Union Territories.
    • In April this year, Madhya Pradesh became the first state in the country to identify a deceased person through NAFIS.

    Utility of NAFIS

    • It enables law enforcement agencies to upload, trace, and retrieve data from the database in real time on a 24×7 basis.
    • It would help in the quick and easy disposal of cases with the help of a centralised fingerprint database.

    How does it work?

    • NAFIS assigns a unique 10-digit National Fingerprint Number (NFN) to each person arrested for a crime.
    • This unique ID will be used for the person’s lifetime, and different crimes registered under different FIRs will be linked to the same NFN.
    • The 2020 report states that the ID’s first two digits will be that of the state code in which the person arrested for a crime is registered, followed by a sequence number.
    • By automating the collection, storage, and matching of fingerprints, along with digitizing the records of fingerprint data, NAFIS will provide the much-needed unique identifier for every arrested person.
    • It will be included in the CCTNS (Crime and Criminal Tracking Network & Systems) database as both are connected at the backend.

    Is this the first time that such an automation project is being attempted?

    • Upon the recommendations of the National Police Commission in 1986, the Central Fingerprint Bureau first began to automate the fingerprint database.
    • It began with digitizing the existing manual records through India’s first Automated Fingerprint Identification System (AFI) in 1992, called Fingerprint Analysis & Criminal Tracing System (FACTS 1.0).
    • The latest iteration, FACTS 5.0, which was upgraded in 2007, was considered to have “outlived its shelf life”, according to a 2018 report by the NCRB and thus needed to be replaced by NAFIS.

    Since when has India relied on fingerprinting as a crime-fighting tool?

    • A system of fingerprinting identification first emerged in colonial India, where it was tested before it spread to Europe and beyond.
    • At first, it was used by British colonial officials for administrative rather than criminal purposes.
    • William Herschel, the chief administrator of the Hooghly district of Bengal, from the late-middle 1800s onwards, used fingerprinting to reduce fraud and forgeries.
    • It then aimed to ensure that the correct person was receiving government pensions, signing land transfer deeds, and mortgage bonds.
    • Anthropometry, the measurement of physical features of the body, was used by officials in India but was soon replaced with a system of fingerprints.

     

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

  • Intra party elections

    Intra party electionContext

    • Congress party has issued a notification for the party’s presidential election hinting towards intra party election.
    • As per the official notification, party leaders can file nominations from 24 September to 30 September. The voting will be held on 17 October and the results will be declared on 19 October.

    What are the elections?

    • An election is a way people can choose their representatives of their preferences in a representative democracy. Elections enable people to judge the performance of the government.

    Why they are important?

    • Elections give people a chance to evaluate their leaders, chance to change the government.
    • Elections help the people in the selection of their representatives and it provides law making power directly to the people.
    • Elections make a fundamental contribution to democratic governance.

    Intra party electionWhat is mean by Intra party elections?

    • It is a mechanism to choose the candidates for various posts of the political through a democratic process, it’s a mandate given by the members of the party itself.
    • The intra-party election is a fundamental indicator to explore the authenticity of democratization and decentralization of political parties.

    Why elections are necessary within the political parties?

    • Internal debates: During intra party elections there would be contests between leaders. There will be debate, discussions some criticism, and differences of opinion. There should be a dialogue between the leaders, members and volunteers
    • Democratic culture: Political parties don’t have to be homogeneous in terms of both ideas and leadership. Political parties are aggregations of interests yet Party workers should not feel they are being ignored, that their efforts are not appreciated or not going in vain under the shadow of a leader came from the family lines.
    • Political career: Having these internal elections, meetings and contests of ideas is important.  Internal election is a key for upward mobility. It gives better understanding of the party’s idea, culture and the work process.
    • High command culture: High command culture is what we are witnessing today in India and South Asia is problematic for democracy, where all political parties are centralized. The few members at the helm are controlling even the smallest decisions about what party should do. Members are not able to express freely their personal views.
    • Feudalism: They are family-controlled parties, and dynastic politics has become a norm. Won’t be able to name more than three or four political parties which have survived 30 years in Indian politics and are today not controlled by apolitical family.
    • Favoritism: where you can only rise up the ranks in the system depending on the relationship you share with the first family of that party. Irrespective of difference of opinions with the top leaders of the party, the upward mobility majorly depends on the relationship.

    Intra party electionWhat is a Legal framework for election?

    There is no law for intra-party elections as of now.

    • Seshan effect: When T.N. Seshan was at the helm of the Election Commission of India (ECI); by an executive order political parties were ordered to conduct intra party elections. And because Seshan was a much respected and feared person, political parties complied with it. Since then, elections are held periodically in every recognized party.
    • What Constitution says: Article 324 says free and fair elections to parliament, state assemblies, president and vice-president. It doesn’t say anything about political party or election within.
    • What Courts argue: The courts have made an observation that nothing in Article 324 of the Constitution, or Section 29A of the Representation of the People Act, 1951 tells us that the ECI can actually regulate internal structures, organizations or elections of the party. Which is why parties, on the left or right, have not been conducting internal elections as we want them to conduct them

    Worldwide practice

    • USA: In the U.S. election, the selection of the candidate to be the presidential nominee is done via debate, in which the contenders condemn and criticize each other.
    • UK: In the U.K. Democracy should be at every level, and political parties are an essential pillar of democracy. Intra party election happens to choose the leader of party.

    What is state funding of election?

    • It is an idea where state or Government of India provides funding to political parties according to their electoral performance.
    • As of today, state does provide land at concessional rate, free air time on national television but today political parties do not come under RTI. Hence some suggest state funding of elections to regulate the behavior of political parties.

    What is the Role of Election Commission in organizational election of political parties?

    • The ECI does insist on organizational elections, but only gently. They do go through the process.
    • Election can happen only if there are two or more candidates in the fray. Getting elected unopposed is also a valid election. It is not just within the political parties, we have

    Seen it in panchayat elections and sometimes even in Lok Sabha and State Assembly elections that candidates have got elected unopposed.

    Intra party electionHow to fix the accountability of the political parties?

    • ECI re-interpreting the existing laws, as happened in the 1990s. ECI has to imagine its role as a regulator of these political parties and in some ways. They have to try out milder options.
    • Political parties are required to hold organizational elections regularly. The parties are required to inform the ECI about changes in their office-bearers.
    • They are required to submit a document of expenditure incurred during elections and in the non-election periods. But there is no cost attached to non-compliance.
    • Expert suggests state funding of election would ensure the accountability of parties as it will bring parties under ambit of RTI and voters can seek the expenditure report from parties. Election commission can also penalize party for non-compliance.

    Conclusion

    • Election for a gram panchayat or presidential it is always a booster for democracy. Intraparty elections are beneficial for party, contesting individual and country at large, it culminates into emergence of quality leadership which in turn a boon for good governance.

    Mains Question

    Q. Intra party elections are essential feature of healthy democracy. Discuss the role of election commission, the courts and the political parties for the healthy functioning of intra party democracy.

    Do follow

    Internal democracy in political parties

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

     

  • Issues related to CBI

    CBIContext  

    • Despite several observations made by the Supreme Court of India (SC) against the inefficient functioning of the CBI nothing has happened to improve the situation.
    • The Enforcement Directorate (ED) is in the news now and often.

    Central Bureau of Investigation (CBI)

    • The Bureau of Investigation traces its origins to the Delhi Special Police Establishment, a Central Government Police force, which was set up in 1941 by the Government of India.
    • It then aimed to investigate bribery and corruption in transactions with the War and Supply Department of India.
    • It then had its headquarters in Lahore.
    • After the end of the war, there was a continued need for a central governmental agency to investigate bribery and corruption by central-government employees.
    • The DSPE acquired its popular current name, Central Bureau of Investigation (CBI), through a Home Ministry resolution dated in 1963.

    Mandate of the CBI

    • The CBI is the main investigating agency of the GoI.
    • It is not a statutory body; it derives its powers from the Delhi Special Police Establishment Act, 1946.
    • Its important role is to prevent corruption and maintain integrity in administration.
    • It works under the supervision of the CVC (Central Vigilance Commission) in matters pertaining to the Prevention of Corruption Act, 1988.
    • The CBI is also India’s official representative with the INTERPOL.

    CBICases to investigate

    • Cases connected to infringement of economic and fiscal laws
    • Crimes of a serious nature that have national and international ramifications
    • Coordination with the activities of the various state police forces and anti-corruption agencies.
    • It can also take up any case of public importance and investigate it
    • Maintaining crime statistics and disseminating criminal information.

    Notable cases cracked by CBI

    • Bhanwri Devi missing case: Jat leader and former Rajasthan minister Mahipal Maderna, Congress MLA Malkhan Singh and Bhanwari’s husband Amarchand were all part of the conspiracy to abduct and eliminate Bhanwari. Bhanwari had threatened to expose Malkhan’s relationship with her at the Bishnoi mahapanchayat.  Maderna, Malkhan, the three kidnappers and Sahiram along with Amarchand were arrested by the CBI.
    • Noida double murder case: In May 2008, the nation was shocked with the sensational double murders in Noida. The victims were Arushi Talwar and Hemraj Banjade. Initially, there was no clarity about the motive or the perpetrator of this ghastly crime. After a lengthy investigation which spanned close to 6 years, the CBI based on circumstantial evidence established that the parents of Aarushi Talwar, Rajesh Talwar and Nupur Talwar were the perpetrators of this crime.
    • The Satyam Case:  B Ramalinga Raju, the disgraced chairman of Satyam Computers Services Ltd, along with 13 individuals and entities including Chintalapati Srinivasa Raju of iLabs, made Rs 2,000 crore in illegal wealth in the Satyam scam. The CBI constituted a Multi-Disciplinary Investigation Team (MDIT) to investigate the case. The team worked hard, burnt midnight oil and achieved success in a record time of 45 days when it filed its first chargesheet against the accused for offences of criminal conspiracy, cheating, forgery and falsification of accounts.

    Issues with CBI

    • Caged parrot: The Supreme Court has criticized the CBI by calling it a “caged parrot speaking in its master’s voice”.
    • Political interference: It has often been used by the government of the day to cover up wrongdoing, keep coalition allies in line and political opponents at bay.
    • Investigation delay: It has been accused of enormous delays in concluding investigations due to political inertia.
    • Loss of Credibility: CBI has been criticised for its mismanagement of several cases involving prominent politicians and mishandling of several sensitive cases like Bofors scandal, Bhopal gas tragedy.
    • Lack of Accountability: CBI is exempted from the provisions of the Right to Information Act, thus, lacking public accountability.
    • Acute shortage of personnel: A major cause of the shortfall is the government’s sheer mismanagement of CBI’s workforce.
    • Limited Powers: The powers and jurisdiction of members of the CBI for investigation are subject to the consent of the State Govt., thus limiting the extent of investigation by CBI.
    • Restricted Access: Prior approval of Central Government to conduct inquiry or investigation on the employees of the Central Government is a big obstacle in combating corruption at higher levels of bureaucracy.

    Why was it called caged carrot by the Supreme Court?

    • Politicisation of the Central Bureau of Investigation (CBI) has been a work in progress for years.
    • Corruption and Politically biased nature, This was highlighted in Supreme Court criticism for being a caged parrot speaking in its master’s voice.
    • CBI has been accused of becoming ‘handmaiden’ to the party in power; as a result high profile cases are not treated seriously.
    • Since CBI is run by central police officials on deputation hence chances of getting influenced by government was visible in the hope of better future postings.

    Suggestions for the improvement of the functioning of the CBI under the supervision of the CVC

    1. One, the CVC Act should be amended, providing for a five/seven member Central Vigilance Commission, which could broadly assume the role visualised for the Lokpal. The selection process of the CVC members should be more broad based to prevent favouritism or from controversial persons being appointed.
    2. Two, the CVC should constitute an advisory committee of at least 11 members drawn from criminologists and forensic science experts. This will augment the professional input in its functioning. Further, to reduce the burden on the CVC, it should be given the power to go to any expert or professional to assist it in screening complaints.
    3. Three, the jurisdiction of CVC, which presently covers all employees of the central government and the CPSUs, should remain unchanged. There is already an administrative arrangement to delegate the vigilance administration over class II and lower formations to the ministries/departments concerned. However, if the lower formations are involved with the class I officers in a composite case, the CVC exercises a natural jurisdiction over all of them. To make this arrangement more effective, it would be important that the CVC exercises complete control over the selection, appointment and functioning of the CVOs.
    4. Four, the CVC should have an adequately experienced team to technically examine and assess the gravity of a complaint, which can then be assigned to the CBI for investigation or can be investigated by this team. After assessing a complaint by this broad-based CVC, there should be no need to seek prior permission from the government.
    5. Five, in the cases assigned to it by the CVC, the CBI should be made functionally and financially independent of the controls of any government ministry/department. The professional supervision over the investigations of the CBI should rest only with the CVC.
    6. Six, the manner of the appointment of the CBI Director should be broad based as in the case of the CVC members, whereas the other inductions/appointments in the CBI should be brought under the overarching supervision of the CVC.
    7. Seven, to achieve better synergy between anti-corruption laws and grievance handling, the laws relating to the whistle blowers and grievance redressal should be placed within the jurisdiction of the CVC.
    8. Eight, effective administration of anti-corruption laws at the grass roots is the key to responsible governance. The state and their anti-corruption agencies would, therefore, need to be equally insulated from the state government’s interference on similar lines.

    Reforming CBI

    • Need for autonomy:   As long as the government of the day has the power to transfer and post officials of its choice in the CBI, the investigating agency will not enjoy autonomy and will be unable to investigate cases freely.
    • Selection of director/ Officers: To ensure that the CBI is a robust, independent and credible investigation agency, there is an urgent need to work out a much more transparent mechanism for selection and induction of officers on deputation.
    • Lokpal scrutiny: The Lokpal Act already calls for a three-member committee made up of the PM, the leader of the opposition and the CJI to select the director.
    • Bifurcation of Cadre: CBI should be bifurcated into an Anti-Corruption Body and a National Crime Bureau.
    • Develop own cadre: One of the demands that have been before Supreme Court, and in line with international best practices, is for the CBI to develop its own dedicated cadre of officers.
    • Annual social audit should be carried out by ten reputed, knowledgeable persons with background of law, justice, public affairs and administration and the audit report should be placed before the parliament.

    About Enforcement Directorate (ED)

    • It goes back to May 1, 1956, when an ‘Enforcement Unit’ was formed in the Department of Economic Affairs.
    • It then aimed for handling Exchange Control Laws violations under the Foreign Exchange Regulation Act (FERA).
    • The ED today is a multi-dimensional organisation investigating economic offences under the Prevention of Money Laundering Act (PMLA), Fugitive Economic Offenders Act, Foreign Exchange Management Act and FERA.

    CBIFrom where does the ED get its powers?

    • When proceeds of crime (property/money) are generated, the best way to save that money is by parking it somewhere, so one is not answerable to anyone in the country.
    • Therefore, there was a need to control and prevent the laundering of money.
    • The PMLA was brought in for this exact reason in 2002, but was enacted only in 2005.
    • The objective was to prevent parking of the money outside India and to trace out the layering and the trail of money.
    • So as per the Act, the ED got its power to investigate under Sections 48 (authorities under act) and 49 (appointment and powers of authorities and other officers).

    At what stage does the ED step in when a crime is committed?

    • Whenever any offence is registered by a local police station, which has generated proceeds of crime over and above ₹1 crore, the investigating police officer forwards the details to the ED.
    • Alternately, if the offence comes under the knowledge of the Central agency, they can then call for the First Information Report (FIR) or the chargesheet if it has been filed directly by police officials.
    • This will be done to find out if any laundering has taken place.

    CBIWhat differentiates the probe between the local police and officers of the ED?

    Case study:

    • If a theft has been committed in a nationalised bank, the local police station will first investigate the crime.
    • If it is learnt that the founder of the bank took all the money and kept it in his house, without being spent or used, then the crime is only theft and the ED won’t interfere because the amount has already been seized.
    • But if the amount which has been stolen is used after four years to purchase some properties, then the ill-gotten money is brought back in the market.
    • Or if the money is given to someone else to buy properties in different parts of the country, then there is ‘laundering’ of money.
    • Hence the ED will need to step in and look into the layering and attachment of properties to recover the money.
    • If jewellery costing ₹1 crore is stolen, police officers will investigate the theft. The ED, however, will attach assets of the accused to recover the amount of ₹1 crore.

    CBIWhat are the other roles and functions of the ED?

    • The ED carries out search (property) and seizure (money/documents) after it has decided that the money has been laundered, under Section 16 (power of survey) and Section 17 (search and seizure) of the PMLA.
    • On the basis of that, the authorities will decide if arrest is needed as per Section 19 (power of arrest).
    • Under Section 50, the ED can also directly carry out search and seizure without calling the person for questioning.
    • It is not necessary to summon the person first and then start with the search and seizure.
    • If the person is arrested, the ED gets 60 days to file the prosecution complaint (chargesheet) as the punishment under PMLA doesn’t go beyond seven years.
    • If no one is arrested and only the property is attached, then the prosecution complaint along with attachment order is to be submitted before the adjudicating authority within 60 days.

    Can the ED investigate cases of money laundering retrospectively?

    • If an ill-gotten property is acquired before the year 2005 (when the law was brought in) and disposed off, then there is no case under PMLA.
    • But if proceeds of the crime were possessed before 2005, kept in storage, and used after 2005 by buying properties, the colour of the money is still black and the person is liable to be prosecuted under PMLA.
    • Under Section 3 of PMLA, a person shall be guilty of money-laundering, if such person is found to have directly or indirectly attempted to indulge or knowingly assist a party involved in one or more of the following activities:
    • Concealment; possession; acquisition; use; or projecting as untainted property; or claiming as untainted property in any manner etc.

    Allegations against ED

    • Huge discretions: The ED is the only Central agency in the country that does not require permission from the government to summon or prosecute politicians or government functionaries for committing economic offences like money laundering.
    • Used for petty crimes: PMLA is pulled into the investigation of even “ordinary” crimes and assets of genuine victims have been attached.
    • Actual purpose denigrated: PMLA was a comprehensive penal statute to counter the threat of money laundering, specifically stemming from the trade in narcotics.
    • Violations of Rights: PMLA was enacted in response to India’s global commitment to combat the menace of money laundering. Instead, rights have been “cribbed, cabined and confined”.
    • Functional opacity: There is also a lack of clarity about ED’s selection of cases to investigate. We often see ED raiding houses of opposition parties suddenly.
    • Poor rate of conviction: We have hardly read the conclusion of cases by ED. Meantime media-trial tears off the accused person’s credibility which is the most desired intent.
    • Under-trials and slower prosecution: ED has been focusing on keeping the accused in custody rather than actually proving the charges against them.

    Challenges to ED

    • ED being dragged to court: The petitions against the ED had the effect of slowing down the investigations, as officers have to defend themselves in court.
    • Foul crying politicians: There are attempts to cover up unexplained, high-value transactions that fall within the PMLA’s ambit
    • Investigation of foreign transactions: Getting information on accounts and money stashed abroad to establish a trail is the biggest challenge they face.

    Way forward

    • The fight against corruption is intimately linked with the reform of the investigations.
    • Therefore the adjudicating authorities must work in cooperation and ensure the highest standards of transparency and fairness.
    • ED has been walking a tightrope to safeguard its integrity by speeding up investigations and court procedures.
    • The need of the hour could be systemic fixes—and not shrill calls to throw the baby out with the bathwater.
    • It is unlikely that corruption can be substantially reduced without modifying the way government agencies operate.

    Conclusion

    • It is for the nation to demand that the country’s premier investigating agencies like the CBI, income tax authorities and the ED are not used as instruments of blackmail and intimidation by the government of the day. Rather they should work with complete objectivity and in the interest of the nation.

    Mains question

    Q. CBI and ED was called caged carrot by the Supreme Court. Do you agree with this? What issues are being faced by these premier agencies? Suggest some dynamic solutions to overcome these issues.

    Do follow

    [Burning Issue] Enforcement Directorate (ED): Dreaded nightmare of Indian Politicians & Businessmen

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)

     

  • LGBTQ leap forward for positive future growth of human rights

    LGBTQContext

    • Four years after landmark LGBTQ verdict: The march to full citizenship.

    Why in news?

    • On September 6, 2018, exactly four years ago, in Navtej Singh Johar and Ors v Union of India, a five-judge constitution bench of the Supreme Court, in a beautifully elaborate decision, liberated LGBTQI Indians from the darkness of Section 377 of the Indian Penal Code, 1860.

    What is LGBTQ?

    • LGBTQ is an initialism that stands for lesbian, gay, bisexual, and transgender. In use since the 1990s, the initialism, as well as some of its common variants, functions as an umbrella term for sexuality and gender identity.

    What is Section 377 of the IPC?

    • It reads – Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
    • The terms “carnal intercourse” and “against the order of nature” are not defined precisely anywhere in the code.

    LGBTQRole played by the judiciary hitherto

    • The Delhi High Court’s verdict in Naz Foundation vs Government of NCT of Delhi (2009) was a landmark in the law of sexuality and equality jurisprudence in India.
    • The court held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class.
    • In a retrograde step, the Supreme Court, in Suresh Kumar Koushal vs Naz Foundation (2013), reinstated Section 377 to the IPC.
    • However, the Supreme Court in Navtej Singh Johar & Ors. vs Union of India (2018) declared that the application of Section 377 IPC to consensual homosexual behaviour was “unconstitutional”.
    • This Supreme Court judgment has been a great victory to the Indian individual in his quest for identity and dignity.
    • It also underscored the doctrine of progressive realisation of rights.

    LGBTQWhat’s next?

    • Overarching legislation is needed to guarantee equality to all persons on the basis of sexual orientation, gender identity and expression, sex, caste, religion, age, disability, marital status, pregnancy, nationality, and other grounds.
    • The law should impose obligations of equality and non-discrimination on all persons, public and private, and in the areas of education, employment, healthcare, land and housing and access to public places.
    • It should provide for civil remedies to stop discriminatory behaviour, costs and damages, and positive action to make reparations.
    • We need an equality law to define what equality would encompass.
    • Supreme Court comes held in its privacy judgment in K.S. Puttuswamy v. Union of India (2017) that equality and liberty cannot be separated, and equality encompasses the inclusion of dignity and basic freedoms.

    Way forward

    • Schools and colleges must effect changes in curricula for a better understanding of the community.
    • People of a different sexual orientation or gender identity often narrate harrowing tales of bullying, discrimination, stigma and ostracization.
    • Gender-neutral restrooms should be compulsory in educational institutes and other places.
    • Parents too need to be sensitised, because the first point of misunderstanding and abuse often begins at home, with teenagers being forced to opt for “conversion” therapies.

    Conclusion

    • Justice Chandrachud, speaking on the fourth anniversary of Johar and the journey ahead, while quoting the Beatles classic “All you need is love”, notes that “simply love is not enough”. Rights are necessary. Which will enhance dignity of the community.

    Mains question

    Q. “Silent segregation” on the grounds of gender, sexual orientation preferences are followed in several houses. Elucidate in context of LGBTQ issues. What Legal remedies are needed for its victims?

    UPSC 2023 countdown has begun! Get your personal guidance plan now! (Click here)