GS Paper: Governance, Transparency & Accountability, Citizens Charters

The Supreme Court has asked the government to treat a writ petition for setting up expert panels to boost India’s prospects in the Rule of Law Index.

Note the various factors/sub-indices on which the index is measured. There can be a direct question on these in line with:

Q. Which one of the following is not a sub-index of the World Bank’s ‘Ease of Doing Business Index’? CSP 2019

(a) Maintenance of law and order

(b) Paying taxes

(c) Registering property

(d) Dealing with construction permits

Why in news again?

• The cause of action for the petition accrued when the World Justice Project ranked India in the 69th position in its Rule of Law Index.
• India has never been ranked even among top 50 in the Index, but successive governments did nothing to improve the international ranking of India, said the petition.
• Poor rule of law has a devastating effect on the right to life, liberty, economic justice, fraternity, individual dignity and national integration.

What is the Rule of Law Index?

• The Rule of Law Index is a quantitative assessment tool by the World Justice Project (WJP) designed to offer a detailed and comprehensive picture of the extent to which countries adhere to the rule of law in practice.
• It measures countries’ rule of law performance across eight factors:

(1) Constraints on Government Powers, (2) Absence of Corruption, (3) Open Government, (4) Fundamental Rights, (5) Order and Security, (6) Regulatory Enforcement, (7) Civil Justice, and (8) Criminal Justice

WJP definition of Rule of Law

The World Justice Project defines the rule of law system as one in which the following four universal principles are upheld:

• The government and its officials and agents are accountable under the law.
• The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property.
• The process by which the laws are enacted, administered, and enforced is accessible, efficient, and fair.
• Justice is delivered by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve.

The Food Safety and Standards Authority of India (FSSAI) has recently released its Food Safety report for 2019-20.

Food safety has been in news this year quite frequent. Do make a note of following – Recommended Dietary Allowance (RDA), Red Octagon, Eat Right Movement, Food Safety Mitra etc.

The Food Safety Index

• The index ranks states on five parameters of food safety: human resources and institutional data, compliance, food testing facility, training and capacity building besides consumer empowerment.
• This is the second index on food safety, which FSSAI released on the occasion of World Food Safety Day with the theme “Food Safety is everyone’s business”.
• It was dedicated to those in the supply chain who have ensured the uninterrupted availability of safe food during this COVID-19 pandemic.

Highlights of the report

• Gujarat, Tamil Nadu and Maharashtra have topped an index that ranked states ensuring food safety in 2019-20.
• Among the smaller states, Goa came first followed by Manipur and Meghalaya.
• Among UTs, Chandigarh, Delhi and the Andaman Islands secured top ranks.

Back2Basics: Food Safety and Standards Authority of India (FSSAI)

• The FSSAI is an autonomous body established under the Ministry of Health & Family Welfare, Government of India.
• It has been established under the Food Safety and Standards Act, 2006 which is a consolidating statute related to food safety and regulation in India.
• It is responsible for protecting and promoting public health through the regulation and supervision of food safety.
• It is headed by a non-executive Chairperson, appointed by the Central Government, either holding or has held the position of not below the rank of Secretary to the Government of India.

The PMO has refused to disclose details on the creation and operation of the PM-CARES Fund, telling a Right to Information applicant that the fund is “not a public authority” under the ambit of the RTI Act, 2005.

Practice question for mains:

Q. The PM-CARES fund is an old wine in a new bottle. Discuss its feasibility and how it is different in context to the PMNRF.

About PM-CARES Fund

• The fund will be a public charitable trust under the name of ‘Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund’.
• The PM is Chairman of this trust and members include the Defence Minister, Home Minister and Finance Minister.
• Contributions to the fund will qualify as corporate social responsibility (CSR) spending that companies are mandated to make.
• The Fund accepts micro-donations as well.

Not a public authority

• The PMO cited a Supreme Court observation that indiscriminate and impractical demands under RTI Act for disclosure of all and sundry information would be counterproductive.
• PM-CARES Fund is not a Public Authority under the ambit of Section 2(h) of the RTI Act, 2005.
• However, relevant information in respect of PM-CARES Fund may be seen on its website.

Then, what makes an authority, Public?

The relevant section of the RTI Act defines a “public authority” as “any authority or body or institution of self-government established or constituted —

• by or under the Constitution;
• by any other law made by Parliament;
• by any other law made by State Legislature;
• by the notification issued or order made by the appropriate Government — and includes any (i) body owned, controlled or substantially financed; (ii) NGO substantially financed, directly or indirectly by funds provided by the appropriate govt.

Arguments against PM-CARES

• The fund carries a public name, the composition of the trust, control, usage of an emblem, government domain name etc. that signifies it as a public authority.
• PM is the ex-officio chairman of the Trust, while three cabinet ministers are ex-officio trustees.
• The composition of the trust is enough to show that Government exercises substantive control over the trust, making it a public authority.

The Union Finance Ministry has launched the facility for instant allotment of (Permanent Account Number) PAN.

Try this question from CSP 2018:

Q.) Consider the following gatemen.

1. Aadhaar card can be used as a proof of citizenship or domicile.

2. Once issued, the Aadhaar number cannot be deactivated or omitted by the Issuing Authority.

Which of the statements given above is/are correct?

(a) 1 only

(b) 2 only

(c) Both 1 and 2

(d) Neither 1 nor 2

Can’t you expect a similar question based on PAN card? If not , go through this newscard.

What is a Permanent Account Number?

• A PAN is a ten-character alphanumeric identifier, issued in the form of a laminated “PAN card”, by the Income Tax Department.
• It is issued to any “person” who applies for it or to whom the department allots the number without an application.
• A PAN is a unique identifier issued to all judicial entities identifiable under the Indian Income Tax Act, 1961.
• The income tax PAN and its linked card are issued under Section 139A of the Income Tax Act.
• It is issued by the Indian Department under the supervision of the Central Board for Direct Taxes (CBDT) and it also serves as an important proof of identification.
• It is also issued to foreign nationals (such as investors) subject to a valid visa, and hence a PAN card is not acceptable as proof of Indian citizenship.

Uses of PAN

• The primary purpose of the PAN is to bring a universal identification to all financial transactions and to prevent tax evasion by keeping track of monetary transactions.
• The PAN is mandatory when filing income tax returns, tax deduction at source, or any other communication with the IT Department.
• PAN is also steadily becoming a mandatory document for opening a new bank account, a new landline telephone connection / a mobile phone connection, purchase of foreign currency, bank deposits above ₹50,000, purchase and sale of immovable properties, vehicles etc.

Why it is in the news?

• A PAN is necessary for filing income tax returns.
• This facility is now available for those PAN applicants who possess a valid Aadhaar number and have a mobile number registered with Aadhaar.
• The allotment process is paperless and an electronic PAN (e-PAN) is issued to the applicants free of cost.

The recent spread of the Coronavirus has triggered a global slowdown and has rendered ongoing business operations of several organisations to almost a standstill. This has resorted them to invoking the ‘force majeure’ clause to seek some relief.

Practice question for mains:

Q) What is the doctrine of Force Majeure and Frustration of a Contract? Discuss how it can worsen the NPA crisis in India.

What is Force Majeure?

• Force majeure is purely a contractual remedy available to an affected party under a contract and for seeking relief, the reference would be to the express terms of the contract.
• It is a contractual provision allocating the risk of loss if performance becomes impossible or impracticable, especially as a result of an event that the parties could not have anticipated or controlled.
• While force majeure has neither been defined nor specifically dealt with, in Indian statutes, some reference can be found in Section 32 of the Indian Contract Act, 1872 (the “Contract Act”).
• It envisages that if a contract is contingent on the happening of an event which event becomes impossible, then the contract becomes void.

Where are such clauses found?

• Force majeure clauses can usually be found in various contracts such as power purchase agreements, supply contracts, manufacturing contracts, distribution agreements, project finance agreements, agreements between real estate developers and home buyers, etc.

Circumstances qualified for force majeure

• A force majeure clause typically spells out specific circumstances or events, which would qualify as force majeure events, conditions which would have be fulfilled for such clause to apply.
• As such, for a force majeure clause to become applicable the occurrence of such events should be beyond the control of the parties.
• The parties will be required to demonstrate that they have made attempts to mitigate the impact of such force majeure event.
• If an event or circumstance qualifies, the consequence would be that parties would be relieved from performing their respective obligations to be undertaken by them under the contract.

Why it is in news, now?

• Due to the lockdown restrictions placed by the government, the parties’ ability to perform and fulfil their contractual obligations is affected.
• Where the contract does not specifically cover the current situation is a matter of debate.
• The Indian Contract Act, 1872 is more than a century old and does not have any specific provisions relating to suspension of contracts or termination of contracts in cases of a pandemic.
• The Act clearly provides that an agreement to do an act impossible in itself is void (Section 56).
• After a contract is made, if any act becomes impossible or unlawful by reason of some event, such a contract becomes void.

What is the difference between force majeure and frustration of a contract?

• Under the doctrine of frustration, the impossibility of a party to perform its obligations under a contract is linked to the occurrence of an event/circumstance subsequent to the execution of a contract and which was not contemplated at the time of execution of the contract.
• However, under in case of a force majeure, parties typically identify, prior to the execution of a contract, an exhaustive list of events, which would attract the applicability of the force majeure clause.
• The doctrine of Frustration renders the contract void and consequently, all contractual obligations of the parties cease to exist.

What did the Supreme Court say?

• Recently, the Supreme Court observed that the doctrine of frustration as enumerated in the Act would apply only where the parties have not specified the consequences of an event which renders the performance of the contract impossible.
• Termination of a frustrated contract would be possible only in cases where the contract becomes impossible to perform which means the damage to the contract should be of permanent nature and not something which can be performed with the passage of time.
• Hence a temporary inability or force majeure event would not qualify under the doctrine.

What lies ahead?

• The force majeure clause in contracts should not be misconstrued as an event of frustration covered under the Act.
• Force majeure is purely a contractual remedy available to an affected party under a contract and for seeking relief; the reference would be to the express terms of the contract.
• However, a party claiming frustration of contract and seeking to escape liability or other obligation under a contract will necessarily have to approach an appropriate judicial forum.
• It is likely that ‘force majeure’ clauses in contracts need to be more heavily negotiated to include references to epidemics or pandemics, in addition to other situations.

Amid concerns over privacy of data being collected by its COVID-19 contact tracing app, the union government has open-sourced the Aarogya Setu app.

Right to Privacy is an important topic for GS. The Aarogya Setu app which has a lot more to offer is under the radar due to the underlying vacuum of Privacy Law in India. To tackle this, the government has launched a bug bounty programme (a sort of hackathon).

About  AarogyaSetu App

• The App enables people to assess themselves the risk of their catching the Corona Virus infection.
• It is designed to keep track of other AarogyaSetu users that a person came in contact with and alert him or her if any of the contacts tests positive for COVID-19.
• It achieves this using the phone’s Bluetooth and GPS capabilities.
• Once installed in a smartphone through an easy and user-friendly process, the app detects other devices with AarogyaSetu installed that come in the proximity of that phone.
• The app can then calculate the risk of infection based on sophisticated parameters if any of these contacts have tested positive.
• The personal data collected by the App is encrypted using state-of-the-art technology and stays secure on the phone until it is needed for facilitating medical intervention.

Issues with the app

• The AarogyaSetu app faces the same issue as every other contact tracing technology that has come up during the pandemic period — it is people dependent.
• It needs widespread usage and self-reporting to be effective.
• Given that any number of total users will be a subset of smartphone owners in India, and there are bound to be variations in the levels of self-reporting, the efficacy is not bulletproof.
• The terms of use of the app also say as much, distancing the government from any failure on the part of the app incorrectly identifying COVID-19 patients.

1) Privacy concerns

• First of all, the app exists in the privacy law vacuum that is India.
• With no legislation that spells out in detail how the online privacy of Indians is to be protected, AarogyaSetu users have little choice but to accept the privacy policy provided by the government.
• The policy goes into some detail on where and how long the data will be retained, but it leaves the language around who will have access to it vague.
• As per the policy persons carrying out medical and administrative interventions necessary in relation to COVID-19” will have access to the data.
• This suggests interdepartmental exchanges of people’s personal information and is more excessive than countries like Singapore and even Israel.

2) Technical issue

• Beyond the legal loopholes, there are technical loopholes as well.
• The unique digital identity in AarogyaSetu is a static number, which increases the probability of identity breaches.
• The abundance of data collected is also potentially problematic.
• AarogyaSetu uses both Bluetooth as well as GPS reference points, which could be seen as overkill whereas other apps such as TraceTogether make do with Bluetooth.

3) Other issues

• Experts emphasise that automated contact tracing is not a panacea.
• They caution against an over-reliance on technology where a competent human-in-the-loop system with sufficient capacity exists.

Back2Basics: What is Open Source?

• The term open source refers to something people can modify and share because its design is publicly accessible.
• The term originated in the context of software development to designate a specific approach to creating computer programs.
• Today, however, “open source” designates a broader set of values—what we call “the open source way.”
• Open source projects, products, or initiatives embrace and celebrate principles of open exchange, collaborative participation, rapid prototyping, transparency, meritocracy, and community-oriented development.

The source code

• “Source code” is the part of the software that most computer users don’t ever see; it’s the code computer programmers can manipulate to change how a piece of software—a “program” or “application”—works.
• Programmers who have access to a computer program’s source code can improve that program by adding features to it or fixing parts that don’t always work correctly.

What is Open Source Software?

• At the simplest level, open-source programming is merely writing code that other people can freely use and modify.
• Open source is a term that originally referred to open source software (OSS).
• OSS is a code that is designed to be publicly accessible—anyone can see, modify, and distribute the code as they see fit.
• An open-source development model is a process used by an open-source community project to develop open-source software.
• The software is then released under an open-source license, so anyone can view or modify the source code.