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GS Paper: Laws, Institutions & Bodies Constituted For The Vulnerable Sections

  • Analyzing the Reservation system and the EWS

    system

    Context

    • Reservation was introduced as a short-term measure to give opportunities to classes of people who were socially and educationally backward and/or inadequately represented in education, employment, politics and other spheres. The intent was laudable. Reservation has increased the standard of life for many. But what was supposed to be a short-term measure got extended due to various political and sociological compulsions.

    What is the idea of reservation?

    • Based on historical injustice: Reservation is intrinsically linked to the historical injustice meted out to Shudras and Dalits.
    • Reservation for egalitarian society: It was during the anti-caste movement that the idea of reservation came up as a way for an egalitarian social order, to ensure fair representation in the socio-political order, and to mitigate and compensate for the inhuman exclusion of humans based on ascriptive status.
    • Equal participation in nation building: Reservation is implemented in politics, education and public employment so that all those in the hierarchy can participate in nation-building on equal terms.

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    system

    Is the reservation system successful in eliminating the cause?

    • Cannot claim it successful: Even after seven decades of reservation, we are not able to claim success in eliminating the cause that required reservation in the first place.
    • successive governments kept extending in a hope of a different outcome: In our personal lives and careers, if a solution to a problem doesn’t give the expected result within a reasonable time frame, we reconsider the solution and try to improve it. However, successive governments kept extending the reservation system, hoping for a different outcome.
    • Reservation system being used as a self-perpetuating mechanism: People who benefited from reservation wanted the system to continue for successive generations too. It was clear that the reservation system was being used by them as a self-perpetuating mechanism.
    • Those who really need are deprived: Since the reservation is used as perpetuating mechanism, those who really needed reservation were deprived of its benefits.

    Analysis over the outcomes of reservation system and the rising silent demands

    • Background, at the time of Independence and the family professions: At the time of Independence, the economy was primarily agrarian and based on traditional commerce. People were largely unskilled. They continued engaging in the professions that their family had practiced for generations.
    • Profession changed from caste-based to skill-based: Free school education and industrialization helped people learn new skills, which gave them scope to migrate to greener pastures. As cities became cosmopolitan, the class divide became a thing of the past. Employment in the industrial sector became largely skill-based rather than caste-based.
    • Social and educational backwardness go hand-in-hand with economic weakness: More than 70 years of reservation has brought economic prosperity to a large section of people and given them adequate representation.
    • Befitted should make a way for others and to completely oppose the demands: Ideally, families that have been brought above the poverty line through adequate employment opportunities and other benefits should make way for others who are less fortunate; instead, they oppose extending the system to the economically weaker sections (EWS) of society only because some of the beneficiaries could be from the so-called ‘forward’ communities.
    • Caste system becoming less prevalent in today’s technology cum information age: The cause for social inequality and oppression was somewhat wrongly attributed to a particular faith and the practice of caste system prevalent in those days. In this technology-cum-information age, the surging middle class population makes the caste system less prevalent.
    • Economic prosperity helps to neutralise the social injustice: The economic prosperity seen today has neutralised to a large extent the very reason for social injustice the class disparity.
    • The reservation is still kept alive: However, the caste and reservation system are still being kept alive only so that political parties and those who have benefited from the system so far can continue to milk it.

    system

    What are the Misconceptions clarification and the judgement over EWS

    • Misunderstanding that the basic structure of the constitution may violet: Most objections to this come from a misunderstanding that the basic structure of the Constitution has been violated by the EWS amendment, which seeks to empower the privileged sections of society who are neither socially and educationally backward nor inadequately represented.
    • Misconception that it will reduce the availability of seats: Another misconception is that the 10% quota in the open category in favour of ‘forward’ communities reduces the availability of seats in the open category for other classes and communities.
    • What the government clarified: The government has clarified that this 10% is in addition to the existing reservation in favour of SEBCs. This means it does not in any way affect reservation up to 50% for SEBCs, OBCs, SCs and STs.
    • The egalitarian judgement: The judgment that sets the basis for this 10% quota said, “If an egalitarian socio-economic order is the goal, the deprivations arising from economic disadvantages, including those of discrimination and exclusion, need to be addressed to by the State; and for that matter, every affirmative action has the sanction of our Constitution.”

    system

    Conclusion

    • The government has a constitutional and moral duty to achieve the goal of “social, economic and political justice,” mentioned in the Preamble. The 10% quota for the EWS aims to correct an anomaly in the system that is depriving deserving and qualified people. We need to accept that reservation on the basis of economic criteria is the need of the hour and the stepping stone to achieving economic and social justice.

     

  • OBC Sub-Categorization Panel’s Report in ‘Final Stages’

    After more than five years of its formation, the commission for the sub-categorization under Justice Rohini of the Other Backward Classes (OBC) is now in the final stages of finishing its task.

    Why in news?

    • The commission is expected to come up with a formula to further classify the nearly 3,000 caste groups and preparing a report on it.
    • This is perceived as crucial development before next Lok Sabha elections.

    OBCs and their sub-categorization

    • OBCs are granted 27% reservation in jobs and education under the central government.
    • In September 20202, a Constitution Bench of the Supreme Court reopened the legal debate on the sub-categorization of SCs and STs for reservations.
    • The debate arises out of the perception that only a few affluent communities among over 2,600 included in the Central List of OBCs have secured a major part of this 27% reservation.

    Need for sub-categorization

    • The argument for sub-categorization — or creating categories within OBCs for reservation — is that it would ensure “equitable distribution” of representation among all OBC communities.
    • To examine this, the Rohini Commission was constituted on October 2, 2017.
    • At that time, it was given 12 weeks to submit its report but has been given several extensions since, the latest one being the 10th.
    • Before the Rohini Commission was set up, the Centre had granted constitutional status to the National Commission for Backward Classes (NCBC).

    What are the Commission’s terms of reference?

    It was originally set up with three terms of reference:

    1. To examine the extent of inequitable distribution of benefits of reservation among the castes or communities included in the broad category of OBCs with reference to such classes included in the Central List;
    2. To work out the mechanism, criteria, norms and parameters in a scientific approach for sub-categorization within such OBCs;
    3. To take up the exercise of identifying the respective castes or communities or sub-castes or synonyms in the Central List of OBCs and classifying them into their respective sub-categories.

    The fourth term of reference was added on January 22, 2020, when the Cabinet granted it an extension:

    1. To study the various entries in the Central List of OBCs and recommend correction of any repetitions, ambiguities, inconsistencies and errors of spelling or transcription.

    Why so many extensions are being given?

    • This was added following a letter to the government from the Commission on July 30, 2019.
    • In process of preparing the sub-categorized central list of OBCs, the Commission has noted several ambiguities in the list as it stands now.
    • The Commission is of the opinion that these have to be clarified/rectified before the sub-categorized central list is prepared.

    What progress has it made so far?

    • In its letter to the government on July 30, 2019, the Commission wrote that it is ready with the draft report (on sub-categorization).
    • Following the latest term of reference given (on January 22, 2020) to the Commission, it is studying the list of communities in the central list.

    How smooth has its work been?

    • A hurdle for the Commission has been the absence of data for the population of various communities to compare with their representation in jobs and admissions.
    • On August 31, 2018, then Home Minister had announced that in Census 2021, data of OBCs will also be collected, but since then the government has been silent on this.
    • Many groups of OBCs have been demanding the enumeration of OBCs in the Census.

    What have its findings been so far?

    • In 2018, the Commission analyzed the data of 1.3 lakh central jobs given under OBC quota over the preceding five years and OBC admissions to central higher education institutions.
    • The findings were: 97% of all jobs and educational seats have gone to just 25% of all sub-castes classified as OBCs; 24.95% of these jobs and seats have gone to just 10 OBC communities.
    • 983 OBC communities — 37% of the total — have zero representation in jobs and educational institutions; 994 OBC sub-castes have a total representation of only 2.68% in recruitment and admissions.

     

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  • Domestic violence: Why women choose to remain silent?

    Domestic violence

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    Context

    • Just ahead of the International Day for Elimination of All Forms of Violence against Women (November 25), the brutal murder and mutilation of a young woman by her partner has drawn attention to intimate partner violence, also recognized under the Protection of Women from Domestic Violence Act 2005 (PWDVA) as a kind of domestic violence.

    Background

    • Due to prevalence of patriarchy women have been discriminated not only in India but in most parts of the world.
    • According to The United Nations, one out of every three women experience domestic violence. The same UN report suggests that the most dangerous place for women is their home.
    • Gender equality and women’s empowerment are essential for the development and well-being of families, communities and nations.

    Domestic Violence

    • Domestic violence is any pattern of behavior that is used to gain or maintain power and control over an intimate partner. It encompasses all physical, sexual, emotional, economic and psychological actions or threats of actions that influence another person.

    Domestic violence can include the following

    • Physical violence: Use of Physical force or hurting or trying to hurt a partner .it also includes denying medical care.
    • Sexual violence: Forcing a partner to take part in a sex act when the partner does not consent.
    • Psychological violence: Psychological violence involves causing fear, threatening physical harm or forcing isolation from friends, family, school or work.
    • Economic violence: Making or attempting to make a person financially dependent by maintaining total control over financial resources.
    • Emotional violence: Undermining a person’s sense of self-worth through constant criticism; belittling one’s abilities; verbal abuse. 

    Domestic violence

    Analysis of Domestic violence cases and protection of women in India

    • Punishable offence: Domestic violence is a punishable offence under Indian law. It is a violation of human rights.
    • According to NFHS-5: yet, National Family Health Survey-5 (2019-21) reveals that we live in a society where violence against women persists to such an extent that 32% of ever-married women aged 18-49 years have ever experienced emotional, physical, or sexual violence committed by their husband, with more rural than urban women reporting experiences of domestic violence.
    • Protection of women from domestic violence Act 2005: Over 17 years ago the PWDVA, a progressive legislation, was passed, promising a joined-up approach, involving civil and criminal protections, to support and protect women from violence within the household, not just from husbands.
    • Unable to access the law: Despite the law existing on paper, women are still largely unable to access the law in practice. Its promise and provisions are unevenly implemented, unavailable and out of reach for most Indian women.
    • Very less percentage of women who seek help: The most disheartening reality is that despite almost a third of women being subject to domestic violence, the National Family Health Survey-5 (2019-21) reports that only 14% of women who have experienced domestic violence have ever sought help; and this number is much lower in the rural areas.
    • Despite of multiple laws, most women choose not to seek help: In a country where domestic violence is a crime, where there are multiple laws explicitly designed to protect women against violence, most women survivors of domestic violence never seek help.

    Domestic violence

    An interesting first-hand case study on “why women choose to remain silent”?

    • Subject: Research in Maharashtra, West Bengal and Tamil Nadu aims to better understand ‘help seeking’ and the everyday realities, obstacles, prejudices and fears that women experience around sharing and reporting experiences of violence.
    • Questions: Simple and well-meaning questions, “Why didn’t you leave earlier?” “Why didn’t you tell someone about the violence earlier?”
    • Thoughts and Response:
    1. Women were hopeful that things would change, that they could change their husband’s behaviour, that he would listen to them.
    2. Crucially women did not want to be a ‘burden’ on others, in particular their families. ‘My mother has a lot of worries, she has her own life so I didn’t want to add to her own worries, with mine.’
    3. By naming the violence they experienced, women believed that they would become ‘a problem’ or a source of ‘tension’ for their families, in bringing them shame and dishonor, irrespective of the survivor’s level of education, caste, or class.
    4. For migrant women, transpeople or those with several sisters, or ill, older or deceased parents, it was felt even more acutely that the perpetrator’s violence was their individual responsibility to manage.

    Domestic violence

    Findings of the case study on seeking help

    • Majority of parents asks to accommodate: The first group of women mainly turned to their parents who, in a majority of cases, insisted on their daughter preserving the family environment which they should do by ‘adjusting’ to, or accommodating their husband’s (and his family’s) needs better.
    • Minority cases where daughters’ welfare is prioritized: In a minority of cases, the daughter’s welfare was prioritized over the well-being of the ‘the family’ and steps were taken to help mediate or exit the relationship, and much more infrequently approach the police and lawyers.
    • Accepted as patriarchal norm mostly by women themselves: So ingrained are social norms about gender inequality that NFHS-5 data reports that women are more likely than men to justify a scenario in which it is acceptable for a husband to beat or hit his wife.
    • Sharing experience gives relief: For instance, one interviewee explained, ‘the way we are conditioned, it was hard to complain about any suffering’. Though survivors who did (finally) confide in relatives and friends about domestic violence described feeling a ‘sense of a relief’ and that a ‘burden had been lifted’, giving them new ‘hope’ that things might change.
    • Confession is powerful step, seek for help comes with mixed emotions: Whilst sharing experiences of violence was an incredibly powerful step for women, actually transforming their violent domestic experiences and accessing services and support provided by the state and non-state actors proved to be an arduous roller coaster of emotions, promises, uncertainty, fear and disappointment.
    • Financial dependence stops women form accessing legal justice: With few safe houses across India, the simple reality was that many women have nowhere else to go, and access to legal justice through the courts was a material possibility only for women with independent wealth and connections or those supported by specialist non-governmental organizations. So, for many survivors, transforming their situation depended on securing their economic self-sufficiency by pursuing new skills and livelihood opportunities.

    Role of the police

    • Police were the part of problem than the solution: Women who reported experiences of violence to the police were cynical about the outcome. Though a small minority had positive experiences, for the majority of those we interviewed, the police were part of the problem rather than a solution to violence.
    • Police more likely to send women back to reconcile: Across the States, that the police were more likely to send women back to violent households to reconcile with the perpetrator or use violence against perpetrators as a deterrent instead of filing an official complaint or connecting women to protection officers and other service providers, as the PWDVA outlines they should.
    • Absence and under resourced Protection officers: Several States are yet to implement Protection officers. And where they are in post, they are under resourced, under-skilled and overworked, making their remit impossible.

    Domestic violence

    Conclusion

    • Even whilst its legislature recognizes that domestic violence is a crime, and civil remedies exist through protection orders, managing the fallout of domestic violence is still being subcontracted to survivors and the family. That is the biggest crime being committed against women today. Women empowerment without social justice is a futile exercise, State must take appropriate social empowerment steps in this direction.

    Mains question

    Q. What is the status of women facing domestic violence in India? Despite many laws and a country where domestic violence is a crime, most women prefer to remain silent and do not seek help. Discuss.

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  • Prevention of Cruelty to Animals (Amendment) Bill, 2022. Why is it needed?

    cruelty

    A draft Prevention of Cruelty to Animals (Amendment) Bill, 2022, prepared by the Ministry of Fisheries, Animal Husbandry, and Dairying, has been opened for public comment.

    Why in news?

    • Recently, instances of animal cruelty in India witnessed a surge.
    • The same has ushered the debate around animal rights and the extent of legal protection that the current laws provide them.

    Prevention of Cruelty to Animals (Amendment) Bill, 2022

    • The Centre has proposed to overhaul The Prevention of Cruelty to Animals Act, 1960, introducing 61 amendments in the law.
    • It includes stringent penalties of three years’ imprisonment for committing “gruesome cruelty” including “bestiality” with animals.

    Main changes proposed in the law

    • Cruelty as a cognizable offence: Several offences have been made cognizable, which means offenders can be arrested without an arrest warrant.
    • Recognizing gruesome cruelty: The proposed law describes “gruesome cruelty” as any act involving animals which leads to “extreme pain and suffering” and is “likely to leave the animal in life-long disability”. It includes mutilation or killing of animals by the use of strychnine injection in the heart or any other cruel manner.
    • Stringent penalties: Essentially, the law is proposed to be made tighter, with more stringent punishments. The draft proposes fines from Rs 50,000 to Rs 75,000 “or the cost of the animal. For killing an animal, the draft Bill proposes a maximum punishment of five years in jail.

    What are the existing penal provisions?

    • An offence such as this — fairly common in India — would currently attract charges under Section 428 (mischief by killing or maiming animal) IPC and Section 11 (treating animals cruelly) of The PCA Act, 1960.
    • It prescribes some rubbish penal provisions.

    Need for such law

    • Barbarism: In September, a doctor in Rajasthan’s Jodhpur allegedly tied a dog to his car and dragged it across the city.
    • Non-deterrence: Present provisions are incapable of acting as any deterrent for potential offenders.
    • Ridicules penalties: First-time offenders under the PCA Act are punished with a fine of Rs 10-50. If it is found that this is not the offender’s first such crime in the past three years, the maximum punishment would be a fine between Rs 25 and Rs 100, a jail term of three months, or both.

    Key propositions for such law

    • Along with animal welfare organisations and several political leaders have in the past called for the law to be amended.
    • In 2014, the Supreme Court, in ‘Animal Welfare Board of India vs A Nagaraja & Others’, had said that “Parliament is expected to make proper amendment of the PCA Act to provide an effective deterrent.

    Government response

    • In April 2021, the Centre had proposed changes where the penalty can go up to Rs 75,000 per animal or three times the cost of the animal as determined by the jurisdictional veterinarian.
    • It proposed imprisonment of three years which may extend to five years or both.
    • The government has finally moved in this direction with proposed amendments.

    Legal remedies in India

    • The Prevention of Cruelty to Animals Act 1960 recognises that animals can suffer physically and mentally, and is applicable to ‘all living creatures’.
    • The Constitution also enshrines the principle of ahimsa and mandates to all citizens of India to ‘have compassion for living creatures’.
    • The Animal Welfare Board of India (AWBI) is the central body responsible for animal welfare in the country.
    • The National Institute for Animal Welfare created in 1999, has the broad mandate to improve animal welfare through research, education and public outreach.
    • According to Section 50(4) of the Wildlife Protection Act, 1972, a Wildlife Offence Report (WLOR) can be filed.

    Apart from increasing penalties, what else is proposed?

    (1) Freedoms to animals

    • “It shall be the duty of every person having charge of an animal to ensure that the animal in his care or under his charge has freedom from:
    1. Thirst, hunger and malnutrition;
    2. Discomfort due to environment;
    3. Pain, injury and diseases;
    4. Fear and distress, and the
    5. Freedom to express normal behaviour for the species

    (2) Protection to community animals

    • The draft defines “community animal” as “any animal born in a community for which no ownership has been claimed by any individual or an organization, excluding wild animals as defined under the wildlife Protection Act, 1972 (53 of 1972).”
    • The proposed law also says that in case of a community animal, the local government such as municipality or panchayats shall be responsible for taking care of the community animals in a manner developed by the State Government or by the Board.

    Latent issues with the law

    • Simply increasing the quantum of punishment may not be enough to stop cruelty against animals.
    • Some already marginalised communities like ‘madaris’ (who perform with animals) and ‘saperas’ (snake charmers) may be disproportionately affected.
    • Others have argued that focusing on the individual act of ‘cruelty’, such as farmers putting up electric fences around their fields, is an incomplete approach.

    Conclusion

    • Steps are needed to mitigate the larger issues of vanishing animal habitats and climate change exacerbating man-animal conflict.

     

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  • 10 years of POCSO: An analysis of India’s landmark child abuse law

    pocso

    Ten years after the enactment of The Protection of Children from Sexual Offences (POCSO) Act, which deals specifically with child sexual abuse, an analysis of POCSO cases across India has found gaps in its implementation.

    Why was POCSO enacted?

    • The Constitution of India has incorporated several provisions to protect the rights of children and India has also been a signatory to landmark international instruments.
    • However, India lacked any dedicated provision against child sexual abuse.
    • Cases would be tried under different provisions of the Indian Penal Code, which was found to be ill-equipped.

    Evolution of POCSO

    • In the 1990s, a child sexual abuse racket was busted in Goa, following which the state government enacted a law to promote child rights in 2003.
    • Also, the Special Expert Committee under Justice VR Krishna Iyer presented a draft code for child rights in India – the Children’s Code Bill, 2000.
    • These two initiatives established the basis for dedicated legislation against child sexual abuse.
    • In 2005, the Department of Women and Child Development prepared a draft bill to address different offences targeted against children.
    • Contrary to the general perception then, the overall percentage of boys reporting experiencing sexual abuse was much higher than that of girls.
    • In September 2010, the Ministry of WCD prepared a draft Protection of Children from Sexual Offences Bill, 2010.
    • This after several rounds of revisions came into force as the POCSO Act on Children’s Day – 14 November, 2012.

    Features of the Act   

    • Gender neutrality: The Act is gender neutral and regards the best interests and welfare of the child. The Act calls for mandatory reporting of sexual offences. A false complaint with intent to defame a person is punishable under the Act.
    • Definition of Child: The Act defines a child as any person below eighteen years of age.
    • Definitions of sexual abuses: It defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography.
    • Prevents child trafficking: People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act.
    • Preventing re-victimization of child: Adequate provisions are made to avoid re-victimization of the Child at the hands of the judicial system.
    • Sensitization of Police: The Act assigns a policeman in the role of child protector during the investigation process.
    • Child friendly investigation: The Act stipulates that such steps must be taken which makes the investigation process as child-friendly as possible.
    • Speedy disposal: The Act provides for the establishment of Special Courts for the trial of such offences and stipulates that the case is disposed of within one year from the date of reporting of the offence.

    What is the rationale behind the legislation?

    • Multiple facets of crime: New forms of child abuse like online bullying, harassment and Child Pornography have emerged to a greater extent.
    • Exception handling: As per the last available data from the National Crime Records Bureau of child rape cases came up before the courts under the POCSO Act read with Indian Penal Code Section 376.
    • Larger conviction: Less than three per cent cases ended in convictions, pointing to the need for better access to justice for all, and not just more stringent conviction in a small percentage of cases.
    • Deterrence against crime: There is the belief that harsher punishments will deter people from committing child rape.
    • Zero-tolerance: Lastly, the disgust for the crime makes the perpetrator ‘deserving’ of death penalty.

    Issues with the Law

    • Recurrence of such crime: In the context of child rape, many preventive measures and policies do have a definitive impact on preventing child rape.
    • Lower conviction: The conviction rates are low under the Protection of Children from Sexual Offences Act, 2012.
    • Investigation bottlenecks: There is lack of specialised investigators, prosecutors, judges, mental health professionals, doctors, forensic experts and social workers.
    • Protection bottlenecks: Inadequate child protection and rehabilitation services, lack of compliance with child-friendly legal procedures are some other concerns.
    • Under-reporting: A large proportion of perpetrators are family members or those close to or known to the family. This results in massive underreporting of such crimes.
    • Protection of convicts: This concern will only intensify with death penalty, as the child’s family often settles a case of known person preventing him to the gallows.
    • Vulnerability: The arbitrariness of the death penalty in India also arises from the discriminatory impact of the choice of what constitutes ‘rarest of rare’.
    • Delay of trials: The Kathua Rape case took 16 months for the main accused to be convicted whereas the POCSO Act clearly mentions that the entire trial and conviction process has to be done in one year.
    • Communal Politicization:  Considering rapes on communal angles is another challenge. The Unnao rape case and Kathua rape case are some of the examples.

    Study of POCSO implementation

    • The analysis, titled ‘A Decade of POCSO’, was carried out by the Justice, Access and Lowering Delays in India (JALDI) Initiative.
    • It was held in collaboration with the Data Evidence for Justice Reform (DE JURE) program at the World Bank.
    • It analysed a total of 230,730 cases from 486 districts spanning 28 states and Union Territories, from 2012 to February 2021.
    • Case laws, policy interventions and case metadata was collected from the eCourts, the digital platform which gives information on pending cases, court orders, etc.

    Key findings on crimes against children

    • Low conviction rate: The analysis has found that 43.44% of trials under POCSO end in acquittals while only 14.03% end in convictions. For every one conviction in a POCSO case, there are three acquittals.
    • Accused were close kin: Out of 138 judgements looked at in detail by the study, only in 6% of the cases were the accused people strangers to the victim.

    Quality of justice under POCSO

    • Huge delay: The study has found on average, it takes 509.78 days for a POCSO case to be disposed of – whereas it has been stipulated under the Act that such cases need to be disposed of within a year.
    • High pendency: Though the pendency of POCSO cases was increasing gradually over the years, there was a sharp increase in the number of pending cases between 2019 and 2020, that could be attributed to the COVID-19 pandemic.
    • Frequent transfer of cases: A total of 22.76% of cases were disposed of by virtue of transfers from one court to another, and one-fifth of the cases in this dataset ended in transfers. Since POCSO cases are supposed to be tried by the Special Court.

    Gaps in implementation

    • Support persons are not being appointed in most cases: The Supreme Court had also noted that in 96% of cases, a support person was not provided to the victim.
    • POCSO courts have not been designated in all districts: As of 2022, 408 POCSO courts have been set up in 28 States as part of the Government’s Fast Track Special Court’s Scheme.
    • There is a lack of Special Public Prosecutors: They should be appointed specifically to handle POCSO cases, and even when they are appointed they are often employed for non-POCSO cases.

    Way forward

    • The social menace of child rape requires sustained planning, engagement, and investment of resources by the government.
    • The need of the hour is to prioritise prevention activities against abuse, creating safe (physical and online) environments for children.
    • Developing a comprehensive outreach system to engage parents, schools, communities, NGOs partners and local governments as well as police and lawyers is needed.
    • This will ensure better implementation of the legal framework, policies, national strategies and standards.

     

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  • What is a Narco Test?

    narco test

    A court in Saket, New Delhi, has allowed Delhi Police to conduct a narco test on a psychopath accused of raping and killing his live-in partner.

    What is a Narco Test?

    • In a ‘narco’ or narcoanalysis test, a drug called sodium pentothal is injected into the body of the accused.
    • This transports the accused to a hypnotic or sedated state, in which their imagination is neutralised.
    • In this hypnotic state, the accused is understood as being incapable of lying, and is expected to divulge information that is true.
    • Sodium pentothal or sodium thiopental is a fast-acting, short duration anaesthetic, which is used in larger doses to sedate patients during surgery.
    • It belongs to the barbiturate class of drugs that act on the central nervous system as depressants.

    History of its use

    • Because the drug is believed to weaken the subject’s resolve to lie, it is sometimes referred to as a “truth serum”.
    • It is said to have been used by intelligence operatives during World War II.

    Reasons to use such tests

    • In recent decades, investigating agencies have sought to employ these tests in investigation, which are sometimes seen as being a “softer alternative” to torture or “third degree” to extract the truth from suspects.
    • However, neither method has been proven scientifically to have a 100% success rate, and remain contentious in the medical field as well.

    Restrictions on these tests

    • No self-incrimination: The Bench took into consideration international norms on human rights, the right to a fair trial, and the right against self-incrimination under Article 20(3) of the Constitution.
    • Consent of the accused: In ‘Selvi & Ors vs. State of Karnataka & Anr’ (2010), a Supreme Court Bench comprising then CJI ruled that no lie detector tests should be administered “except on the basis of consent of the accused”. The subject’s consent should be recorded before a judicial magistrate, the court said.
    • Legal assistance to such convicts: Those who volunteer must have access to a lawyer, and have the physical, emotional, and legal implications of the test explained to them by police and the lawyer.
    • Guidelines at place: It said that the ‘Guidelines for the Administration of Polygraph Test on an Accused’ published by the National Human Rights Commission in 2000, must be strictly followed.

    Can the results of these tests be considered as “confessions”?

    • Not a confession: Because those in a drugged-induced state cannot exercise a choice in answering questions that are put to them.
    • Assumed as evidence: However, any information or material subsequently discovered with the help of such a voluntarily-taken test can be admitted as evidence.
    • Supports investigation: It reveals the location of, say, a physical piece of evidence (which is often something like a murder weapon) in the course of the test.

     

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  • Delhi HC fumes over Compensation delay to kin of sewer death victims

    sanitation

    “My head hangs in shame,” said the Chief Justice of Delhi High Court while condemning the Delhi Development Authority (DDA) for not paying ₹10 lakh each as compensation to the family of person who died after inhaling toxic gases inside a sewer.

    Why such criticism by the Delhi HC?

    • Cleaning of sewers and septic tanks has led to at least 351 deaths since 2017.

    Manual sanitary works in India

    • Manual scavenging is the practice of removing human excreta by hand from sewers or septic tanks.
    • India banned the practice under the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (PEMSR).
    • The Act bans the use of any individual for manually cleaning, carrying, disposing of or otherwise handling in any manner, human excreta till its disposal.
    • In 2013, the definition of manual scavengers was also broadened to include people employed to clean septic tanks, ditches, or railway tracks.
    • The Act recognizes manual scavenging as a “dehumanizing practice,” and cites a need to “correct the historical injustice and indignity suffered by the manual scavengers.”

    Why is it still prevalent in India?

    • Low awareness: Manual scavenging is mostly done by the marginalized section of the society and they are generally not aware about their rights.
    • Enforcement issues: The lack of enforcement of the Act and exploitation of unskilled labourers are the reasons why the practice is still prevalent in India.
    • High cost of automated: The Mumbai civic body charges anywhere between Rs 20,000 and Rs 30,000 to clean septic tanks.
    • Cheaper availability: The unskilled labourers, meanwhile, are much cheaper to hire and contractors illegally employ them at a daily wage of Rs 300-500.
    • Caste dynamics: Caste hierarchy still exists and it reinforces the caste’s relation with occupation. Almost all the manual scavengers belong to lower castes.

    Various policy initiatives

    • Prohibition of Employment as Manual Scavengers and their Rehabilitation (Amendment) Bill, 2020: It proposes to completely mechanise sewer cleaning, introduce ways for ‘on-site’ protection and provide compensation to manual scavengers in case of sewer deaths.
    • Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013: Superseding the 1993 Act, the 2013 Act goes beyond prohibitions on dry latrines, and outlaws all manual excrement cleaning of insanitary latrines, open drains, or pits.
    • Rashtriya Garima Abhiyan: It started national wide march “Maila Mukti Yatra” for total eradication of manual scavenging from 30th November 2012 from Bhopal.
    • Prevention of Atrocities Act: In 1989, the Prevention of Atrocities Act became an integrated guard for sanitation workers since majority of the manual scavengers belonged to the Scheduled Caste.
    • Compensation: As per the Prohibition of Employment of Manual Scavengers and their Rehabilitation (PEMSR) Act, 2013 and the Supreme Court’s decision in the Safai Karamchari Andolan vs Union of India case, a compensation of Rs 10 lakh is awarded to the victims family.
    • National Commission for Safai Karamcharis (NCSK): It is currently a temporary non-statutory body that investigates the conditions of Safai Karamcharis (waste collectors) in India and makes recommendations to the Government.

     Other initiatives for sanitation workers

    • The ministry now has proper distinction between sanitation work and manual scavenging.
    • The practice of manual scavenging no longer takes place in the country as all manual scavengers had been accounted for and enrolled into the rehabilitation scheme, said the ministry.
    • The enumeration of sanitization workers is soon to be conducted across 500 AMRUT (Atal Mission for Rejuvenation and Urban Transformation) cities, as a part of National Action Plan for Mechanised Sanitation Ecosystem (NAMASTE).
    • The NAMASTE scheme aims to eradicate unsafe sewer and septic tank cleaning practices.

    Way forward

    • Regular surveys and social audits must be conducted against the involvement of manual scavengers by public and local authorities.
    • There must be proper identification and capacity building of manual scavengers for alternate sources of livelihood.
    • Creating awareness about the legal protection of manual scavengers is necessary.

     

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  • Critical Analysis of EWS Reservation

    EWS

    Context

    • Shortly after the Supreme Court on Monday, 7 November, upheld the validity of the 103rd Constitutional Amendment Act, which introduced 10 percent reservations for Economically Weaker Sections (EWS) in government jobs and educational institutions, Tamil Nadu’s DMK termed the split verdict a ‘setback’ to a century-old fight for social justice.

    What is the idea of reservation?

    • Based on historical injustice: Reservation is intrinsically linked to the historical injustice meted out to Shudras and Dalits.
    • Reservation for egalitarian society: It was during the anti-caste movement that the idea of reservation came up as a way for an egalitarian social order, to ensure fair representation in the socio-political order, and to mitigate and compensate for the inhuman exclusion of humans based on ascriptive status.
    • Equal participation in nation building: Reservation is implemented in politics, education and public employment so that all those in the hierarchy can participate in nation-building on equal terms.
    • Reservation is not a poverty alleviation: R. Ambedkar and E.V. Ramasamy ‘Periyar’ spoke about reservation as a means of providing representation; not as a poverty alleviation programme.

    Reasoning behind granting reservation based on social status

    • Historical benefits to upper caste: Merit is often the mantra used against the idea and implementation of reservation. Historically, Brahmins had the monopoly in offering sacrifice, receiving gifts, becoming priests, spiritual mentorship, and teaching.
    • Monopoly over resources: Vaishyas had the monopoly in wealth-generating professions. These monopolies were rooted in, and buttressed by, the authority of scriptures like the Manusmriti and treatises like the Arthasashtra.
    • Monopoly over the education: The top three Varnas had access to learning. In the colonial era, under the progressive pressures of modernization and democratization, the traditional monopolies based on caste order were diffused into the secular domains of bureaucracy, legal practice, professorship, etc.
    • Upper caste reservation in certain professions: Leaders professing equality, such as Jyotirao Phule, Periyar and Ambedkar, wanted to annihilate the arbitrary reservation for certain professions, being implemented based on fanciful mythical stories.
    • Democratization of employment and education: Essentially, the mission was to ‘de-reserve’ education and employment opportunities from a handful of castes to make them available to the remaining castes which were aspiring to be a part of the newly independent nation.
    • Idea of Merit to oppose the reservation: The merit mantra was very effective at stopping, or at least stalling, the ‘de-reservation’ process. But when the bill for EWS reservation was passed hastily in Parliament in 2019, there was no concern for merit.

    EWS

    How categorization of poor under EWS is unfair?

    • The bar of 8 Lakh is absurd: Individuals from upper caste communities who earn up to ₹8 lakh a year and may own a 1,000-square feet home are being called economically weak.
    • Poverty estimation: In India, more than 30 crore citizens have been classified as being below the poverty line (spending less than ₹32 a day in urban areas and under ₹27 a day in rural areas).
    • Lower caste forms the majority of Poor: Data from India (overall) as well as individual States show that Scheduled Castes (SCs) and Other Backward Classes (OBCs) have a higher share of poor people than upper castes in both urban and rural India.
    • Different income criteria for different community: We now live in a country where a household earning more than ₹75 per day is considered above the poverty line, while an upper caste household earning ₹2,222 a day is considered economically weak. According to the Department of Revenue data, households earning more than ₹10 lakh constitute less than 1% of India’s population.

    EWS

    Credibility of Data for EWS reservation was never questioned

    • Mandal commission data was critically analyzed: In the 1990s, renowned scholars from privileged communities viciously attacked the Mandal Commission claiming that it lacked credible data. In fact, the Mandal Commission report was based on official data curated from the Censuses of 1891 and 1931.
    • No credible data for EWS reservation: Further, B.P. Mandal formulated his concept of ‘backwardness’ by factoring in the social, educational and economic dimensions of different caste communities. But now, neither justification nor credible data has been presented while arguing that 10% reservation must be provided for the upper caste poor.
    • EWS reservation is equating the unequal’s: The Mandal Commission report said, “To equate unequal’s is to perpetuate inequality”. By giving the go-ahead for the EWS quota, Supreme Court has equated unequal’s in the category of affirmative action.
    • More privilege to already privileged community: The EWS quota is unfair because it twists the idea of social justice by bequeathing further privilege to communities who are historically situated to benefit from the oppressive caste system.

    Other criticism of EWS reservation?

    • SC/ST and OBC are outside the EWS reservation: A Dalit or an OBC who does not get a job within this quota still belongs to the EWS, but he is excluded. That is the Constitutional issue, which you have to answer. How have you excluded them, how have you excluded the poor, how have you excluded those who earn only 20,000 a month who do not get jobs amongst the Dalits?
    • Disturbing the basic structure: The government of tinkering with the “basic structure” of the Constitution.
    • Ultimate goal is removal of reservation: Government basically testing the waters and this will pave the way for the removal of caste-based reservation.
    • Opening the lid for further reservation: There is demand that government should raise the existing reservation cap for SC, OBC and minorities in line with their proportion in the population now since a decision has been taken to break the 50 per cent ceiling set by the top court.

    Conclusion

    • It is true that historically reservation is based social inequalities. Despite having the good credentials and marks upper caste or open categories were denied jobs. Justice to upper castes is not the injustice to lower castes. This is against the principal of natural justice. However exclusion of SC/ST and OBC from EWS category is certainly a matter of debate.

    Mains Question

    Q. What is the Ambedkar’s idea of reservation? Critically analyze the EWS reservation upheld by supreme court.

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  • Impact of Pandemic on Vulnerable Section: SC, ST and OBC

    Impact of Pandemic

    Context

    • SC/ST and OBC have been impacted disproportionately by the pandemic as various social indicators shows vulnerabilities of this communities.

    Impact of pandemic on education

    • On the one hand, with policies mandating the promotion of students, promotion rates at the secondary school level rose significantly and repetition rates nosedived during the pandemic years (2020-21 and 2021-22).
    • On the other, the inability to attend physical school and the lack of access to digital education caused a massive drop in learning levels after the COVID-19 outbreak.

    Impact of Pandemic

    Impact on education of SC, ST and OBC

    • Increasing promotion rate: Notably, the promotion rate among Scheduled Caste (SC) and Scheduled Tribe (ST) students increased sharply after the outbreak. The promotion rate among Other Backward Classes (OBC) students continued to rise unabated.
    • Repetition rate declining: The repetition rates too drastically came down in the pandemic years with some 1% students repeating their class across all communities. Notably, the gap in the repetition rate between SC/ST students and general category students declined greatly after the outbreak.
    • Declining learning outcomes: While the promotion rate surged and the repetition rate declined, the marks scored by school students in National Achievement Survey (NAS) exams dropped significantly across classes and in most subjects.
    • Disproportionate impact: There is a disproportionately greater impact on SC and ST students as their learning outcomes reduced the most while their promotion rates saw the highest degree of rise among all the communities.

    Impact on livelihood of vulnerable sections of the society

    • High job loss probability: The researchers found that compared to workers from upper castes, the probability of job loss was three times higher for those who are SC and two times higher for OBC workers.
    • Comparatively higher unemployment: In December 2019, 39% of upper caste workers were employed and by April 2020, the percentage had dropped to 32%. The fall was more pronounced for SC workers, 44% of whom were employed in December 2019, but only 24% were employed in April 2020. For OBCs and STs the fall was from 40% to 26% and 48% to 33%, respectively.
    • Poor education poor Opportunities: According to researchers, the upper castes are endowed with higher human capital, i.e. educational achievement, and are in jobs less vulnerable to pandemic disruption. What is surprising is that the impact on scheduled caste is three times worse. Not only has the pandemic exposed the pre-existing inequities but has amplified them.

    Impact of Pandemic

    How women are affected due to the pandemic?

    • Effect on mental health: Women in low-caste women may be at a greater risk for worse mental health outcomes and higher perceived loneliness relative to high-caste women.
    • Social exclusion and job losses: Prior research has found that low-caste women have been found to experience greater social exclusion greater job loss and greater barriers to healthcare and thus may experience both worse mental health and higher loneliness.
    • Rising loneliness: Women in SC/ST and OBC groups will experience worse mental health, and higher perceived loneliness relative to women in the general caste group. We expect that this difference will be robust even when accounting for sociodemographic factors.
    • Victims of systemic disadvantage: Women in general and women of weaker sections in particular, are victims of multiple systemic disadvantages, which exacerbated during the pandemic. Rural women, especially the female wage workers, endured greater socio-economic difficulties as their livelihood opportunities were abruptly halted by the lockdown.
    • Visible gendered impact of pandemic: There is nothing natural in the gendered impact of pandemic, but the social norms and behaviour put them at greater risks due to unequal gender preference that is inbuilt in the social structure and culture.

    Conclusion

    • Pandemic have disproportionately affected the Indian society. Whether it is access to healthcare or vaccination SC, ST and OBC had a disadvantage. Lot of studies and research have assessed the caste specific impact of coronavirus and projected the dismal state of vulnerable groups. Government must look all these data while drafting the future policies for vulnerable communities.

    Mains Question

    Q. Analyze the learning outcome of SC/ST students after the pandemic. Assess the impact of pandemic on women belonging to SC, ST and OBC community.

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  • Should the Age of Consent be changed for Adolescents?

    The Karnataka High Court has asked the Law Commission to rethink the age of consent under the Protection of Children from Sexual Offences, or POCSO, Act 2012.

    What is the Age of Consent?

    • The age of consent for sex in India is 18 under the POCSO Act.
    • Consent given by a girl aged below 18 is not regarded as valid and sexual intercourse with her amounts to rape.

    What did the HC say?

    • The aspect of consent by a girl of 16 years, but who is below 18 years, would have to be considered.
    • This has to be if it is indeed an offence under the Indian Penal Code and/or the POCSO Act, said the HC.
    • The offender should be booked under Section 366 of the IPC, Section 6 of the POCSO Act and Section 9 of the Prohibition of Child Marriage Act, 2006.

    What are the terms of the POCSO Act?

    • Under the POCSO Act, 2012, considers a child anyone below 18 years of age.
    • Even if the girl is 16 years old, she is considered a “child” under the POCSO Act and hence her consent does not matter, and any sexual intercourse is treated as rape.

    Issues with such consent

    • Consent is ignored: It thus opens the accused up to stringent punishment.
    • Child abuse charges are ruled out: There have been several instances when the courts have quashed criminal proceedings of rape and kidnapping.
    • Misuse of the provision: The court is often convinced that the law is being misused to suit one or the other party.

    Case study

    • In 2019, a study, Why Girls Run Away to Marry – Adolescent Realities and Socio-Legal Responses inIndia, was published by Partners for Law in Development,
    • It made a case for the age of consent to be lower than the age of marriage to decriminalise sex among older adolescents to protect them from the misuse of law.

    Is the law being misused?

    (1) Foiling consensual relations

    • Sometimes, disgruntled parents file a case to foil a relationship between two adolescents or children on the threshold of adolescence.
    • POCSO is often used by parents who want to control who their daughters or sons want to marry.

    (2) Coercion for marriage:

    • The study noted that in many cases, a couple elopes fearing opposition from parents resulting run away to get married.
    • The parents then book the boy for rape under the POCSO Act and abduction with the intent to marry under IPC or the Prohibition of Child Marriage Act, 2006.

    Judicial interpretations for lower age of consent

    • In 2021, in the Vijaylakshmi vs State Rep case, the Madras High Court, while dismissing a POCSO case, said the definition of ‘child’ under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18.
    • The court suggested that the age difference in consensual relationships should not be more than five years.
    • This, it said, will ensure that a girl of an impressionable age is not taken advantage or duped sexually of by a person who is much older.

    Policy measures so far

    • A parliamentary committee is looking into the Prohibition of Child Marriage (Amendment) Bill, 2021 which seeks to increase the minimum age of marriage for women to 21 years.
    • Rights activists feel instead of helping the community, raising the age may force vulnerable women to remain under the yoke of family and social pressures.

    Way forward

    • With the courts and rights activists seeking an amendment to the age of consent criteria, the ball lies in the government’s court to look into the issue.
    • In the meantime, adolescents have to be made aware of the stringent provisions of the POCSO Act and also the IPC.

     

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