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GS Paper: GS2

  • Foreign Policy: India as a Pole in Itself

    India

    Context

    • The ongoing war in Ukraine on the one hand and the confrontation between Russia and the United States and the West, on the other have increased the frequency/regularity of the question, whose side is India on, after all? Is India with Russia or with the U.S./the West in this war?

    What is the issue of India taking the either side?

    • India doesn’t support the either camp: When great powers seek India’s support during geopolitical contestations, such as the one over Ukraine, they end up facing a stubborn India that is reluctant to toe the line.
    • India is not a satellite state: The inherent reason behind Indian reluctance, however, is not stubbornness but a sense of self which views itself as a pole in the international system, and not as a satellite state or a camp follower.
    • India has a different position than two poles: India refuses to take sides because it views itself as a side whose interests are not accounted for by other camps or poles.
    • India projects the multipolar world order: New Delhi’s constant exhortations of a multipolar world are also very much in tune with this thinking about itself as a pole in a multipolar world.

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    India

    India’s history of not taking the side (non-alignment)

    • Historically different civilization: The origins of this thought can be found in the character of the country’s long struggle for independence; the pre- and post-Independence articulations of leaders such as Jawaharlal Nehru, Gandhiji, and Bal Gangadhar Tilak among others on international politics; the (not uncontested) primacy India inherited as the legatee state of the British empire in South Asia; India’s larger than life civilizational sense of self.
    • Non-Aligned Movement (NAM) experiment: NAM have contributed to India’s desire for a unique foreign policy identity and a voice in the comity of nations. For much of its modern independent history, India’s foreign policy has been a unique experiment.
    • Independent foreign policy: Historically, India’s view of itself as a pole is evident in the manner in which it used to pursue non-alignment for several decades after Independence. Some vestiges of this continue to inform India’s foreign policy to this day.
    • Non-alignment is not a neutrality: It is also important to point out that India’s non-alignment is often misunderstood given that a number of foreign commentators and practitioners interpret it as neutrality. For India, however, non-alignment is not neutrality, but the ability to take a position on a given issue on a case-by-case basis.

    How India asserts itself as a different pole in international affairs?

    • No domination in south Asia: India has a different view of itself as a pole. It has not actively sought to dominate the South Asian regional subsystem even when it could.
    • No alliance like NATO: Its balancing behaviour has been subpar, it has refused to build alliances in the classical sense of the term, or sought camp followers or allegiances. As a matter of fact, even its occasional balancing behaviour (for instance, the 1971 India-Soviet Treaty during the Bangladesh war) was contingent on emergencies.
    • South Asia is not a Strategic periphery: It does believe it has a strategic periphery in South Asia where it has a natural claim to primacy.
    • Doesn’t allow interference in south Asia: It discourages interference by other powers in that space.
    • India speaks for global south: India often tends to speak for ‘underprivileged collectives’, physical (South Asia) or otherwise (NAM, developing nations, global south, etc. in varying degrees); and it welcomes the rule of law and regional order.

    India

    What should world learn from India’s position as a pole in itself?

    • India as unique player in international system: India’s recent or past statements on issues of global importance be it Ukraine or Iraq, or the North Atlantic Treaty Organization’s aerial campaign in Serbia, or bringing climate change to the United Nations Security Council (UNSC) indicate that it tends to take positions that not just suit its interests but are also informed by its sense of being a unique player on the global stage.
    • India as partner not cheerleader: Western powers must, therefore, treat India as a partner rather than as a cheerleader. They should mainstream India into global institutions such as the UNSC, and consult India rather than dictate to India which side to take.

    India

    Conclusion

    • As India becomes the chair of the G20 and the SCO in 2022, it will further seek to assert itself as a major pole in the international system, and dissuade demands to follow one camp or another. Therefore, those wishing to work with India on the global stage must learn to deal with the ‘India pole’.

    Mains Question

    Q. Analyse the India’s policy of not taking the position of west or Russia on global issues. How India asserts itself as a different pole in international affairs?

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  • Draft Digital Personal Data Protection Bill, 2022

    personal

    Context

    • Ministry of Electronics and Information Technology released the Digital Personal data Protection Bill, 2022, on November 18.

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    Background: Demand for the data surveillance reforms

    • The journey towards a data protection legislation began in 2011 when the department of Personnel and Training initiated discussions on the Right to Privacy Bill, 2011.
    • As per an Office Memorandum dated September 29, 2011, the then attorney General, Goolam Vahanvati, opined that conditions under which the government can carry out “interception of communication” should be spelt out in the Bill.
    • The report of the group emphasized the need to examine the impact of the increased collection of citizen information by the government on the right to privacy. Since then, civil society organizations, lawyers and politicians have consistently demanded surveillance reform, highlighting how personal data can only be protected when the government’s power to conduct surveillance of citizens is meaningfully regulated.

    Personal

    Revoked version of Digital Personal data Protection Bill, 2022

    • Eases cross-border data flows but wide-ranging powers to state agencies: The reworked version of the data protection Bill, released three months after the Govt withdrew an earlier draft, eases cross-border data flows and increases penalties for breaches. But it gives the Centre wide-ranging powers and prescribes very few safeguards.
    • Delicate balance on privacy and restrictions: Officials at the Ministry of Electronics and IT (MeitY) have said the new draft strikes a delicate balance and factors in learning from global approaches, while staying aligned to the Supreme Court’s ruling on privacy as a fundamental right, but within reasonable restrictions.
    • Seven principles of the Bill: The explanatory note accompanying the Bill elaborates on the seven principles it seeks to promote, including transparency, purpose limitation, data minimization, and preventing the unauthorized collection of personal data.

    personal

    The surveillance architecture In India

    • Main components: The surveillance architecture in India comprises mainly of Section 5(2) of the Indian Telegraph Act, 1885; Section 69 of the Information Technology Act, 2000; and the procedural rules promulgated under them.
    • No clearly defined ground: No But this architecture does not meaningfully define the grounds under which, or the manner in which, surveillance may be conducted.
    • No safeguards: It also does not contain safeguards such as ex-ante or ex-post facto independent review of interception directions.
    • Lack of accountability: The concentration of power with the executive thus creates a lack of accountability and enables abuse. Evidence for this emerges not only from instances of political surveillance, but also from the slivers of transparency that accidentally emerge from telecom companies.
    • Excessive surveillance: For instance, submissions by Airtel to the Telecommunications Department, as part of the public consultation process for the Indian Telecommunication Bill, reveal that excessive data collection requests are already a reality. Airtel has asked the government to share the costs it incurs to comply with the increasing demands from law enforcement agencies to carry out surveillance.
    • Concerns over citizen data processing: Apart from outright surveillance, unfettered collection and processing of citizen data for other purposes, such as digital governance, raise concerns.

    What are the concerns over the revoked version of the bill?

    • No proposals for surveillance reform: All iterations of the data protection legislation since the draft Personal Data Protection Bill, 2019, the draft Data Protection Bill, 2021 and the 2022 Bill have no proposals for surveillance reform.
    • Data processing without consent: Personal data can be processed even without the person’s consent. Blanket exemptions Like previous iterations, Clause 18(2) of the 2022 Bill allows the Union government to provide blanket exemptions for selected government agencies.
    • Permits exemption to private entities: However, this Bill is more egregious than previous iterations as it permits exemption to private sector entities that may include individual companies or a class of them, by assessing the volume and nature of personal data under Clause 18(3).
    • Exemptions without the purview of data protection: Under the new Bill in India, exempted state agencies and private entities will not be within the purview of the Data Protection Board, the body responsible for imposing penalties in case fiduciaries infringe privacy.

    Personal

    Data processing in other countries

    • Exemptions on case by case and the rationale behind it: While the existing or proposed legislations in the European Union and in the U.S. permit security agencies to claim exemptions on a case-by-case basis, depending on why they are collecting personal data, they do not contain blanket exemption powers to an entire government entity.
    • Meaningful state surveillance: Other jurisdictions exercise meaningful oversight over state surveillance. For instance, the Investigatory Powers Tribunal in the U.K. is authorized to hear complaints against misuse of surveillance powers and can impose monetary penalties in case of a breach.

    Conclusion

    • The preamble to the 2022 Bill states that the purpose is to protect the personal data of individuals and to ensure that personal data is processed only for lawful purposes. However, blanket exemptions for state agencies alongside private entities raise untold concerns, which need to be addressed on a war footing.

    Mains question

    Q. What do you understand by data surveillance? It is said the Data surveillance architecture in India lacks accountability and transparency. Analyze.

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  • Union Health Ministry rolls out India’s 1st Suicide Prevention Policy

    The Ministry of Health and Family Welfare announced a National Suicide Prevention Strategy, the first of its kind in the country.

    What is Suicide?

    • Suicide is the act of intentionally causing one’s own death.
    • Mental and physical disorders, substance abuse, anxiety and depression are risk factors.
    • Some suicides are impulsive acts due to stress (such as from financial or academic difficulties), relationship problems (such as breakups or divorces), or harassment and bullying.
    • Despite being entirely preventable, India has been increasingly losing individuals to suicide.

    Why need such strategy?

    Ans. Suicides in India

    • The burden of deaths by suicide has increased in India — by 7.2 per cent from 2020 — with a total of 1,64,033 people dying by suicide in 2021.
    • In India, more than one lakh lives are lost every year to suicide, and it is the top killer in the 15-29 years category.
    • In the past three years, the suicide rate has increased from 10.2 to 11.3 per 1,00,000 population, the document records.
    • The most common reasons for suicide include family problems and illnesses, which account for 34% and 18% of all suicide-related deaths.
    • The report follows a 2021 Lancet study that noted “India reports the highest number of suicide deaths in the world”.

    About the National Suicide Prevention Strategy

    The NSPS puts a time-bound action plan and multi-sectoral collaborations to achieve reduction in suicide mortality by 10% by 2030.  The strategy broadly seeks to establish-

    1. Effective surveillance mechanisms for suicide within the next three years,
    2. Establish psychiatric outpatient departments that will provide suicide prevention services through the District Mental Health Programme in all districts within the next five years, and
    3. Integrate a mental well-being curriculum in all educational institutions within the next eight years.

    The strategy also envisages:

    1. Developing guidelines for responsible media reporting of suicides and
    2. Restricting access to means of suicide

    Significance of the strategy

    • The most important thing is that the government has acknowledged that suicide is a problem.
    • We now have a well-conceived plan involving multi-sectoral collaborations, because the only way a strategy would work would be to involve various sectors.
    • The strategy should now be passed on to the States for them to develop locally relevant action plans; and then cascade to the district, primary health and community levels.

    Why suicide is such a big issue?

    • More youth committing: For the youth of the country (15-29 years), among whom 1/3rd of all suicides take place.
    • Performance pressure: Data suggests that one student dies by suicide every 55 minutes, and 1,129 suicides among children below 18 years of age in 2020 were due to failure in examinations.
    • Farm distress: This is followed by farmer’s suicide and the gendered variance observed these days.
    • Gendered variances: More women are committing suicides these days.

    Way forward

    suicide

    • Holistic approach: Promoting national and sectoral research into the reasons for suicide mortality and its rise, and making culturally and economically appropriate suggestions to help mitigate the problem is critical.
    • Counselling by mass-media: During times of distress, media must promote health-seeking behaviour, correct information and counter the possible myths related to suicide.
    • Evidence-based interventions: Keep in mind the needs of the most vulnerable and marginalized populations, like women and young individuals, providing the required support systems can reduce the number of lives lost and build a healthier response system.

     

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  • The curious case of Fiscal Federalism in India

    Federalism

    Context

    • NITI Aayog has not taken any major steps since its constitution to promote cooperative federalism. Contrary to its public statements on promoting cooperative federalism, the Government of India has been accused of doing exactly the opposite. The following instances clearly demonstrate as to how the central government’s policies have undermined the spirit of federalism and eroded the autonomy of the States.

    Why the states are angry over hypocrisy of the Centre?

    • Centre raises off budget borrowings states are restricted: The borrowings by corporations against State guarantees are mostly used for capital investment. The Centre has also been raising off Budget borrowings but mainly for meeting revenue expenditure.
    • CAG report on extra budgetary resources: The Comptroller and Auditor General of India (C&AG) Report on the Compliance of FRBM Act for 2017-18 and 2018-19 pointed out as many as eight instances of meeting revenue expenditure through Extra Budgetary Resources (EBR).
    • Unjustified limitations on states: Revenue expenditure met through EBR by the Centre amounted to ₹81,282 crore in 2017-18 and ₹1,58,107 crore in 2018-19. Such borrowings were not reflected in the Budget of the central government. In view of this, treating off Budget borrowings of State corporations as States’ borrowings retrospectively is totally unjustified.

    Federalism

    Unhappiness about the grants by the finance commission’s recommendations?

    • Special grants are not given to states: The Fifteenth Finance Commission, in its first report, had recommended a special grant to three States amounting to ₹6,764 crore to ensure that the tax devolution in 2020-21 in absolute terms should not be less than the amount of devolution received by these States in 2019-20. This recommendation was not accepted by the Union Government.
    • Nutritional grants are accepted: the recommendation relating to grants for nutrition amounting to ₹7,735 crore was not accepted.
    • Grants to states are refused by the Centre: A similar approach has been followed by the Union Government with regard to grants to States recommended by the Finance Commission for the period 2021-26.
    • Sector and state specific grants: The sector specific grants and State specific grants recommended by the Commission amounting to ₹1,29,987 crore and ₹49,599 crore, respectively, have not been accepted. This clearly demonstrates that the Union Government has undermined the stature of the institution of the Finance Commission and cooperative federalism.

    How borrowing of the states is controlled by the Centre?

    • Changes in off budget borrowing norms: decision to treat off Budget borrowings from 2021-22 onwards serviced from the State budgets as States’ borrowings and adjusting them against borrowing limits under Fiscal Responsibility and Budget Management (FRBM) in 2022-23 and following years is against all norms.
    • No recommendations by finance commission: This is the first time that the Government of India is proposing to treat off Budget borrowings as government borrowings retrospectively from 2021-22. The Government of India has indicated that such a decision is in accordance with the recommendation of the Finance Commission. In fact, there is no recommendation to this effect by the Fifteenth Finance Commission. The Finance Commission recommended that governments at all tiers may observe strict discipline by resisting any further additions to the stock of off Budget transactions.
    • No amendment to FRBM act: It observed that in view of the uncertainty that prevails now, the timetable for defining and achieving debt sustainability may be examined by a high-powered intergovernmental group and that the FRBM Act may be amended as per the recommendations of this group to ensure that the legislations of the Union and the States are consistent. No such group has been appointed so far by the Centre.

    Federalism

    Cess and Surcharge- A tool to raise revenue for Centre not available to the states

    • Rising share of cess and surcharges: The government has been resorting to the levy of cesses and surcharges, as these are not shareable with the States under the Constitution. The share of cesses and surcharges in the gross tax revenue of the Centre increased from 13.5% in 2014-15 to 20% in the Budget estimates for 2022-23.
    • States don’t get all share in divisible pool: Though the States’ share in the Central taxes is 41%, as recommended by the Fifteenth Finance Commission, they only get a 29.6% share because of higher cesses and surcharges.
    • Undermining the purpose of cess: The C&AG in its Audit Report on Union Government Accounts for 2018-19 observed that of the ₹2,74,592 crore collected from 35 cesses in 2018-19, only ₹1,64,322 crore had been credited to the dedicated funds and the rest was retained in the Consolidated Fund of India. This is another instance of denying States of their due share as per the constitutional provisions.
    • Increasing centrally sponsor scheme and burden on state: Committee after committee appointed by the Government of India has emphasised the need to curtail the number of Centrally Sponsored Schemes (CSS) and restrict them to a few areas of national importance. But, what the Government of India has done is to group them under certain broad umbrella heads (currently 28). In addition, in 2015, the Centre increased the States’ share in a number of CSS, thereby burdening States. Most of the CSS are operated in the subjects included in the State list. Thus, States have lost their autonomy.
    • NITI Aayoge recommendations are not accepted: The Sub-Committee of Chief Ministers appointed by NITI Aayog has recommended a reduction in the number of schemes and the introduction of optional schemes. These recommendations have not been acted upon.

    Federalism

    Conclusion

    • Finance commission is balancing wheel of fiscal federalism. Share of states in central taxes may have increased but cess and surcharges have also increased. Off budget borrowing on states can lifted provided should reduce the unnecessary freebies in the state budget.

    Mains Question

    Q. Fiscal federalism is tilted in favour of Centre. Elaborate. How Cess and surcharges are discriminatory against the state governments?

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  • Quasi-Judicial Bodies

    Quasi-Judicial

    Context

    • There is a class of quasi-judicial agencies that are not discussed in conversations on the pendency of cases. Their failure to administer speedy justice leads to harassment of citizens, besides abetting criminal activity by unscrupulous elements.

    What are the quasi-judicial bodies

    • Role of adjudicating the law: A quasi-judicial body is “an organ of Government other than a Court or Legislature, which affects the rights of private parties either through adjudication or rulemaking”.
    • Not a court of law: It is not mandatory that a Quasi-Judicial Body has to necessarily be an organization resembling a Court of Law. For example, the Election Commission of India is also a Quasi-Judicial Body but does not have its core functions as a Court of Law.
    • Some examples of Quasi-Judicial Bodies: Election Commission of India, National Green Tribunal, Central Information Commission (CIC), Lok Adalat etc.

    Functioning of quasi-judicial bodies

    • Supervise the administrative disputes: They primarily oversee the administrative zones. The courts have the power to supervise over all types of disputes but the quasi-judicial bodies are the ones with the powers of imposing laws on administrative agencies.
    • Lessen the burden on courts: These bodies support to lessen the burden of the courts. Quasi-judicial activity is restricted to the issues that concern the particular administrative agency. Quasi-judicial action may be appealed to a court of law.
    • Limited role of adjudication: Their powers are usually limited to a particular area of expertise, such as financial markets, employment laws, public standards, immigration, or regulation.
    • Rules of justice are pre-determined: Awards and judgements of quasi-judicial bodies often depend on a pre-determined set of rules or punishment depending on the nature and gravity of the offence committed.
    • Its award can be challenged in court: Such punishment may be legally enforceable under the law of a country it can be challenged in a court of law which is the final vital authority.

    Problems faced by quasi-judicial authorities

    • Understaffing of bodies: The maladies that these agencies suffer from are far graver than judicial set-ups, as they are staffed by revenue authorities who have several other functions. Usually, many of these offices are understaffed.
    • More administrative and less judicial work: Their engagement with duties such as law and order, protocol, coordination and other administrative functions leaves them with much less time for court work.
    • Limited access to records: Their access to court clerks and record keepers is limited. Computers and video recorders are not available in many of these courts. Only a few states such as Maharashtra, Madhya Pradesh and Rajasthan have electronic platforms for supporting activities such as the filing of cases, publication of cause lists and sending summons.
    • Lack of knowledge about procedures: Several of the presiding officers lack proper knowledge of law and procedures which has landed many a civil servant in deep trouble in sensitive matters such as those related to arms licences.
    • Data is unavailable: Data on the level of pendency or the speed of disposal is not compiled in many states. This is why there is scarcely any attempt to increase staff strength. There is hardly any public scrutiny say by the press or legislature.

    How to improve the functioning of Quasi-judicial bodies?

    • Priority of the government: The government should make the efficient functioning of these agencies a priority and clearly articulate its position on the issue.
    • Collection of data is must: Detailed data on the functioning of these agencies must be collected and published from time to time at least annually.
    • Digitization of judicial data: An electronic platform should be established to handle all ancillary work related to the administration of justice, such as filing of complaints, issue of summons, movement of case records between courts, issuing copies of the judgments and so on.
    • Mandatory annual inspection: annual inspections of the subordinate courts should be made mandatory. This should be an important indicator for assessment by the superior authority.
    • Study on functioning of this bodies: Interdisciplinary research on the functioning of these courts should be encouraged. This would identify the areas of improvement such as legal reforms or issue of clear guidelines.
    • Time to time training of authorities: Regular training and orientation of the adjudicating authorities should be taken up from time to time.
    • State performance index should be published: The state index of performance of these quasi-judicial courts be made and published.
    • Online publication of awards by authorities: Important decisions, guidelines and directions could be compiled and published on the portal of the apex adjudicating forum such as the Board of Revenue.
    • Rigorous induction training: More rigorous induction training of officials handling judicial work would help. The importance of judicial work should be instilled among the trainees and the skill and confidence in handling them should be developed.
    • Procedural reforms: Procedural reforms such as minimizing adjournments, mandatory filing of written arguments and other such reforms proposed by bodies like the Law Commission for reform of the Civil Procedure Code should be adopted by these adjudicating bodies.

    Conclusion

    • Quasi-judicial bodies form the substantial institutions of judicial system. It is regularly side-lined when we talk about the judicial reforms. If we could make our quasi-judicial bodies function properly and efficiently, it will reduce the burden on High courts and Supreme court.

    Mains Question

    Q. Why the quasi-judicial bodies are underperforming in India? Which steps are needed to improve the functioning of quasi-judicial bodies?

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  • Arun Goel appointed as Election Commissioner

    Former secretary of the Ministry of Heavy Industries Arun Goel has been appointed as the Election Commissioner.

    About Election Commission of India (ECI)

    • The ECI is a constitutional body was established by the Constitution of India to conduct and regulate elections in the country.
    • Article 324 of the Constitution provides that the power of superintendence, direction, and control of elections.
    • The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies, State Legislative Councils and the offices of the President and Vice President of the country.
    • Thus, the Election Commission is an all-India body in the sense that it is common to both the Central government and the state governments.
    • The Election Commission operates under the authority of Constitution per Article 324 and subsequently enacted Representation of the People Act.

    Composition of ECI

    • The ECI was established in 1950 and originally only had one Chief Election Commissioner.
    • Two additional Commissioners were appointed to the commission for the first time during the 1989 General Election, but they had a very short tenure, ending on 1 January 1990.
    • The Election Commissioners are assisted by Deputy Election Commissioners, who are generally IAS officers.
    • They are further assisted by Directors General, Principal Secretaries, and Secretaries and Under Secretaries.
    • At the state level, Election Commission is assisted by the Chief Electoral Officer of the State, who is an IAS officer of Principal Secretary rank.
    • At the district and constituency levels, the District Magistrates (in their capacity as District Election Officers), Electoral Registration Officers and Returning Officers perform election work.

    Tenure

    • The tenure of election commissioners is not prescribed by Indian Constitution.
    • However, the Election Commission conduct of service Act, 1991 prescribes the term of service.
    • Chief Election Commissioner or an Election Commissioner shall hold office for a term of six years, or up to the age of 65 years, whichever is earlier, from the date on which he/she assumes his/her office.

    Removal from office

    • The Chief Election Commissioner of India can be represented removed from their office in a manner similar to the removal of a judge of the Supreme Court of India.
    • It requires a resolution passed by the Parliament of India a two-thirds majority in both the Lok Sabha and the Rajya Sabha on the grounds of proved misbehaviour or incapacity.
    • Other Election Commissioners can be removed by the President of India on the recommendation of the Chief Election Commissioner.
    • A Chief Election Commissioner has never been impeached in India.

    Recent incidence of criticisms of ECI

    Ans. Partiality in Elections

    • Over the last couple of years, several actions and omissions of the commission have come in for criticism.
    • Nearly 66 former bureaucrats in a letter addressed to the President, expressed their concern over the working of the Election Commission.
    • They felt was suffering from a credibility crisis, citing various violations of the model code of conduct during the 2019 Lok Sabha Elections.

    Importance of ECI for India

    • Conduction of Election: The ECI has been successfully conducting national as well as state elections since 1952.
    • Electoral participation: In recent years, however, the Commission has started to play a more active role to ensure greater participation of people.
    • Discipline of political parties: It had gone to the extent of disciplining the political parties with a threat of derecognizing if the parties failed in maintaining inner-party democracy.
    • Upholds federalism: It upholds the values enshrined in the Constitution viz, equality,
      equity, impartiality, independence; and rule of law in superintendence, direction, and control over electoral governance.
    • Free and fair elections: It conducts elections with the highest standard of credibility, freeness, fairness, transparency, integrity, accountability, autonomy and professionalism.

    Issues with ECI

    • Flaws in the composition: The Constitution doesn’t prescribe qualifications for members of the EC. They are not debarred from future appointments after retiring or resigning.
    • No security of tenure: Election commissioners aren’t constitutionally protected with security of tenure.
    • Partisan role: The EC has come under the scanner like never before, with increasing incidents of breach of the Model Code of Conduct in the 2019 general elections.
    • Political favor: The opposition alleged that the ECI was favoring the ruling party by giving clean chit to the model code of conduct violations made by the PM.
    • Non-competence: Increased violence and electoral malpractices under influence of money have resulted in political criminalization, which ECI is unable to arrest.

     

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  • Principles of Financial Consumer Protection

    Consumer Protection

    Context

    • Earlier this year, the G20/OECD released a draft of the proposed revisions to their 2011 High-level Principles on Financial Consumer Protection. As India takes over G20 presidency in December, it must lead others by example and adopt the revised principles, especially since the global financial markets are headed for a stormy future.

    What is Financial Consumer Protection (FCP)?

    • Financial consumer protection encompasses the laws, regulations, and institutional arrangements that safeguard consumers in the financial marketplace. It includes technical guidance, country reports, and tools for policymakers, regulators, development partners and other experts.

    Background of Financial Consumer Protection

    • 10 thematic areas: The 2011 principles covered 10 thematic areas reflecting the market and consumer issues, including equitable and fair consumer treatment, disclosures and transparency, and financial education.
    • Two additional principles included: In October, the fourth finance ministers and central bank governors meeting endorsed these principles. In 2022, two additional principles were included access and inclusion and quality financial products.
    • Recommendation for intervention: The updated principles also recommend intervention by regulators in certain high-risk products, cultivating appropriate firm culture and using behavioral insights to better consumer outcomes.
    • These principles deal with three cross-cutting themes
    1. Financial well-being,
    2. Digitalization and
    3. Sustainable finance.

    Financial well-being under Financial Consumer Protection

    • Individual financial well-being: OECD’s working definition of “individual financial well-being” refers to being in control, feeling secure and having freedom about one’s own current and future finances.
    • Easy disclosure to consumers: An effective FCP regime must ensure adequate and easy to understand disclosures to consumers. However, an information dump for mere compliance defeats this purpose, especially in India where financial literacy is not pervasive.
    • Risk profiling by service provider: Regulators such as SEBI prescribe certain financial service providers to assess customer suitability and undertake risk profiling before providing services.
    • India does not recognize this theme: At present, India does not recognise this concept. Going forward, faced with challenges like financial illiteracy and economic hardship, it may be worth considering.

    Consumer Protection

    Digitization under FCP

    • Increasing digital channels in financial domain: FCP must factor in the increasing number of digital channels consumers use to interact with financial products and services and the impact of greater use of artificial intelligence and other emerging technologies.
    • Guideline on digital lending by RBI: In September, the RBI released guidelines on digital lending, mandating entities providing digital lending services to have a grievance redress officer, assess a borrower’s creditworthiness before extending credit, and allow a borrower to exit without penalty.
    • Poor grievance redressal: Additionally, there are concerns regarding redress of grievances against payment service providers in the UPI ecosystem. With the rising number of UPI transactions and the largely unregulated status of cryptocurrencies, FCP will continue to be relevant.

    Sustainable finance under FCP

    • Multi-dimensional approach: There is growing consumer demand for sustainable financial investments. Financial services providers are incorporating environmental, social and governance factors into their operations, products and services.
    • Transparency is must: FCP recommends improved transparency to help consumers make informed choices.
    • BRSR by SEBI: SEBI has transitioned from “business responsibility reporting” to “business responsibility and sustainability reporting” (BRSR) to promote responsible corporate governance vis-à-vis climate change.
    • Mandatory disclosure by BRSR: Eligible companies under BRSR must provide certain disclosures, including a sustainability performance report. This allows investors to make an informed decision. Similar disclosures must be introduced in other market segments.

    Consumer Protection

    Conclusion

    • The RBI’s financial inclusion index shows that an increasing number of people are entering financial markets. FCP is central to ensuring that they continue to stay. The current regulatory landscape is sectoral and fragmented, resulting in regulatory arbitrage, as witnessed in the case of digital gold. Regulators must take a coordinated approach to protect consumers.
  • Constituent Assembly Debate and Ideal Conduct of Governor

    Governor

    Context

    • In recent years, there has been an erosion of constitutional provisions, constitutional morality, and constitutional ethos being witnessed among various constitutional bodies. The conduct of the Governors of some States has made a mockery of the Constitution and its limitations.

    Governor

    Constituent assembly debates about the Governor

    • Exercise of Power according to constitution: In 1949, Prof. K.T. Shah debating Article 130 (now Article 154) said: “the Constitution should make it imperative upon the Governor to use its power in accordance with the Constitution and the Law, that is to say, on the advice of his Ministers as provided for in the subsequent clauses and in other parts of the Constitution.”
    • Appointment of governor by president: It was hotly debated whether the Governor should be appointed by the President of India or should be elected. Fearing that this would create a parallel State leadership, the Assembly instead adopted appointment by the President.
    • Good governor and Bad Governor: G. Kher said: “a Governor can do a great deal of good if he is a good Governor and he can do a great deal of mischief, if he is a bad Governor, in spite of the very little power given to him under the Constitution”
    • Friendly intervention of the Governor: K. Sen said, “The question is whether by interfering, the Governor would be upholding the democratic idea or subverting it. It would really be a surrender of democracy. We have decided that the Governor should be a constitutional head. He would be the person really to lubricate the machinery and to see to it that all the wheels are going well by reason not of his interference, but his friendly intervention.”
    • Aid and advice of cabinet: R. Ambedkar said, according to the principles of the New Constitution, Governor is required to follow the advice of his ministry in all matters. Therefore, the real issue before the House is not nomination or election, but what powers you propose to give to your Governor.
    • Nomination of governor and not election: If the Governor is a purely constitutional Governor with no more powers than what we contemplate expressly to give him in the Act. I personally do not see any very fundamental objection to the principle of nomination.”

    Governor

    Constitutional Provision Regarding Governor

    • Article 153: Provides a Governor for each State, and by virtue of Article 154, the executive power of the State shall be vested in the Governor “Shall be exercised by him directly or through officers subordinate to him in accordance with this Constitution”.
    • Article 154(2)(a): Prohibits the Governor from exercising any function “conferred by existing law on any other Authority”.
    • Article 163: Categorically provides that “there shall be a council of ministers with the Chief Minister at the head to aid and advise the Governor… except in so far as he is by or under this Constitution required to exercise his function or any of them in his discretion”.

    How governor ideally supposed to conduct his duty?

    • Shamsher Singh vs State of Punjab: The Supreme Court, in Shamsher Singh vs State of Punjab, decided on this issue in 1974: The Governor exercises “all his powers and functions” by making rules for the convenient transactions of the business of the government of the State in accordance with Article 166 of the Constitution. These are called Rules of Business.
    • Satisfaction of governor is satisfaction of cabinet: The Court however amplified that “wherever the constitution requires satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360. The satisfaction required by the Constitution …. is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of the Government”.
    • Use of discretion in harmony with council of ministers: The Court went on to hold that “the discretion conferred on the Governor means that as the Constitutional or the formal head of the State, the power is vested in him” and that it is only in the exercise of the power under Article 356 that the Governor will be justified in exercising his discretion even against the aid and advice of his council of ministers as per his discretionary power but, in all other matters where the Governor acts in his discretion, he will act in harmony with his Council of Ministers.
    • No parallel administration by governor: The Constitution does not aim at providing a parallel administration. The basic philosophy is that in a democracy, the elected Ministers must accept responsibility for every executive act and that the Council of Ministers alone represents a responsible form of government in the States.

    Governor

    Conclusion

    • Governor’s role is to assist the Chief minister of state and not creating the trouble for Chief Minister. Governor should not act in a manner that undermines the dignity of constitutional post of Governor. Governor must follow the constitutional morality while discharging his duty.
  • Political participation and representation of Women in India

    representation

    Context

    • A truly representative democracy seeks adequate representation of women in politics. India is the largest and one of the most resilient parliamentary democracies in the world. Women’s representation in India’s Parliament has improved since independence. It is an important metric to evaluate progress in bridging gender inequalities in the country.

    Background: Gender Inequality in Politics

    • Women historically been Politically marginalized: Women, who constitute almost one-half of the world’s population (49.58 percent), have historically been politically marginalized in both developed and developing nations.
    • Beginning of social reforms: From the mid-19thcentury onwards, however, social movements have succeeded in effecting widespread reforms.
    • UN charter: The charter of the United Nations Organization (UNO, started in 1945) supported women’s rights.
    • International Bill of Rights for women: With the rise of feminist movements of the 1960s and ‘70s, the UN General Assembly in 1979 adopted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)often considered as an International Bill of Rights for women. In the Convention, Article 7 upholds women’s right to hold political and public office.
    • Millennium development goals (MDGs), included gender equality: In 2000, UN member states adopted the Millennium Declaration and outlined eight Millennium Development Goals (MDGs), to be achieved by 2015, which included promoting gender equality.
    • Empowering women under Sustainable Development Goals (SDGs): In January 2016 the initiative was extended to pursue 17 Sustainable Development Goals (SDGs) of which Goal 5 seeks to “achieve gender equality and empower all women and girls”, ensuring “women’s full and effective participation and equal opportunities for leadership at all levels of decision-making in political, economic and public life.”

    representation

    The present status of Women representation in politics worldwide.

    • Representative governments increased but women count remains low: According to UN Women, as of September 2022, there were 30 women serving as elected heads of state and/or of government in 28 countries (out of a total of 193 UN member states).
    • Dichotomy in active participation: There is the dichotomy between the rapid increase of women’s participation as voters in elections and other political activities, and the slow rise of female representation in Parliament.
    • Global average women representation: As of May 2022, the global average of female representation in national parliaments was 26.2 percent.
    • Above average representation: The Americas, Europe, and Sub-Saharan Africa have women’s representation above the global average;
    • Below average representation: Asia, the Pacific region, and the Middle East and Northern Africa (MENA) region, are below average.
    • Varied representation within Asian countries:
    • The South Asian countries faring worse than the others.
    • IPU data of May 2022 showed that women’s representation in Nepal, for example, was 34 percent, in Bangladesh 21 percent, in Pakistan 20 percent, in Bhutan 17 percent and in Sri Lanka 5 percent.
    • For India, women’s representation in the Lok Sabha (the Lower House) has remained slightly below 15 percent.
    • The study does not include Afghanistan, but World Bank data of 2021 stated that female representation in the country’s last parliament was 27 percent.

    representation

    Journey of Women’s Political Participation in India 

    • Before Independence: India has a history of marginalization and exploitation of women framed by patriarchal social structures and mindsets.
    • Beginning of social reforms and participation in Freedom struggle: The Indian freedom movement, starting with the swadeshi in Bengal (1905-08) also witnessed the impressive participation of women, who organized political demonstrations and mobilized resources, as well as occupied leadership positions in those movements.
    • Post-Independence: After India attained independence, its Constitution guaranteed equal status for men and women in all political, social and economic spheres.
    • Equality guaranteed by The Constitution:
    • Part III of the Constitution guarantees the fundamental rights of men and women.
    • The Directive Principles of State Policy ensure economic empowerment by providing for equal pay for equal work by both men and women, humane conditions of work, and maternity relief.
    • Any Indian citizen who is registered as a voter and is over 25, can contest elections to the lower house of Parliament (Lok Sabha) or the state legislative assemblies; for the upper house (Rajya Sabha) the minimum age is 30.
    • Articles 325 and 326 of the Constitution guarantee political equality and the right to vote.
    • Reservation for women in local bodies: In 1992, the 73rdand 74th amendments to the Constitution provided for reservation of one-third of the total number of seats for women in Panchayati Raj Institutions (PRIs) and municipal bodies.

    representation

    Three main parameters to assess women’s participation in politics in India

    1. Women as Voters: In the last Lok Sabha election of 2019, almost as many women voted as men a watershed in India’s progress towards gender equality in politics which has been called a “silent revolution of self-empowerment The increased participation, especially since the 1990s, is attributed to a number of factors.
    2. Women as Candidates: Overall, however, while women candidates in parliamentary elections have increased over time their proportion compared to male candidates remains low. In the 2019 Lok Sabha elections, of the total of 8,049 candidates in the fray, less than 9 percent were women.
    3. Women’s Representation in Parliament: Although women’s participation as voters in elections has increased significantly, the data on women’s representation in both the Lok Sabha and Rajya Sabha suggests that the proportion of women representatives has remained low in comparison to their male counterparts.

    Just to know:  

    • The highest proportion of women representatives elected to the Lok Sabha so far was in the 2019 elections, and it was less than 15 percent of total
    • The number of women candidates and MPs varies greatly across states and parties.
    • In the present Lok Sabha (17th), Uttar Pradesh and West Bengal have the highest numbers of women MPs. In terms of percentage, Goa and Manipur had fielded the highest proportion of women candidates.

    Why female representation in Parliament and state legislatures remained low?

    • Inaccessibility of Institutions: Election records show that most political parties, though pledging in their constitutions to provide adequate representation to women, in practice give far too few party tickets to women candidates. A study found that a large section of women who do get party tickets have family political connections, or are ‘dynastic’ politicians. With normal routes of accessibility limited, such connections are often an entry point for women
    • Notion of women less likely to win: It is still widely held in political circles that women candidates are less likely to win elections than men, which leads to political parties giving them fewer tickets.
    • Challenging Structural Conditions: Election campaigns in India are extremely demanding and time-consuming. Women politicians, with family commitments and the responsibilities of child care, often find it difficult to fully participate
    • Highly vulnerable: Women politicians have been constantly subjected to humiliation, inappropriate comments, abuse and threats of abuse, making participation and contesting elections extremely challenging.
    • Expensive electoral system: Financing is also an obstacle as many women are financially dependent on their families. Fighting parliamentary elections can be extremely expensive, and massive financial resources are required to be able to put up a formidable contest. Absent adequate support from their parties, women candidates are compelled to arrange for their own campaign financing this is a huge challenge that deters their participation
    • Internalized patriarchy: A phenomenon known as ‘internalized patriarchy’ where many women consider it their duty to priorities family and household over political ambitions.

    Why women participation in law making process is so important?

    • Political empowerment: Legislative representation is fundamental to political empowerment, enabling participation in the law-making process. Legislatures play a vital role in raising debates and discussions on various aspects of governance and in exacting accountability from the government.
    • Shows the status of gender parity: Women’s representation in the national parliament is a key indicator of the extent of gender equality in parliamentary politics.
    • Women bring different skills to politics: According to Political scientist, Anne “women bring different skills to politics and provide role models for future generations; they appeal to justice between sexes.
    • Facilitates specific interests of women in policy: Their inclusion in politics facilitates representation of the specific interests of women in state policy and creates conditions for a revitalized democracy that bridges the gap between representation and participation.
    • Highly effective and less likely to be criminal and corrupt: Study found that, women legislators perform better in their constituencies on economic indicators than their male counterparts also women legislators are less likely to be criminal and corrupt, more efficacious, and less vulnerable to political opportunism.

    Way ahead

    • It should be made legally obligatory for every registered political party to give one-third of the total number of party tickets it distributes at every election to women. The Representation of People Act, 1950, will have to be amended to enable this strategy.
    • Second, if the party-level reform proves difficult, the Women’s Reservation Bill 2008 which mandated reservation of one-third of parliamentary and state assembly seats for women will have to be revived.

    Notes in short: Can be used in answers, essays and debates accordingly.

    1. Despite strong patriarchal norms, the country is seeing an increase in women’s political participation, parallel to higher levels of education and growing financial independence.
    2. The number of women contesting parliamentary and state legislative elections remains limited.
    3. Where constitutionally mandated reservation of seats for women has been provided at the local self-government level, women’s representation has increased.
    4. However, political parties, the primary vehicle of electoral politics, remain largely inaccessible for women to contest parliamentary and legislative elections even after 75 years of Indian independence.

    Conclusion

    • The organic shift to opening up spaces for women in Indian parliamentary politics has been slow. More women are needed in these platforms to transform the discourse on governance and policy-making, and bring India closer to becoming a truly inclusive and representative democracy.

     

  • 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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