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GS Paper: GS2

  • Public opinion cannot influence jurisprudence

    Context

    On May 5, 2022, the current affairs site politico.com obtained the draft opinion of Justice Samuel Alito, apparently speaking for the majority of the judges of the Supreme Court of the United States (SCOTUS) overruling Roe v Wade (1973) and Planned Parenthood v Casey (1992). These two previously decided cases enable women in the US to access abortions, albeit with some restrictions.

    Background of the US Supreme Court

    • SCOTUS was established on March 4, 1789.
    • The almost 225-year-old court, founded to interpret the American constitution that was adopted in 1789, has a long history of being an ideologically divided court, hearing deeply contentious political issues.
    • Within both the polity and law in the US, no issue is as emotive and divisive as matters related to abortion.
    • At present there is the 6-3 divide in the SCOTUS, with the conservatives constituting the majority.
    • Paying attention to the public opinion: Conservative judges also frame the regulation of abortion as a state legislative rights issue, giving enormous weight to the apparent public opinion within those states.

    Paying attention to the public opinion

    • In the draft opinion that was leaked, after being circulated to the other eight judges of SCOTUS, Justice Alito writes “We hold that Roe and Casey must be overruled,” adding, “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.
    • Here is how the issue is initially framed: Legislatures in states must be able to adopt laws on abortion as they see fit.
    • The justification offered is in the context of the legitimacy of such laws being made by the will of the people, through their representatives.
    •  Justice Alito clearly sees this an issue for the legislature to decide based on the will of the voters.

    Why public opinion is not a legitimate parameter for adjudicating issues of rights

    • Against the separation of power: Across jurisdictions, in the constitutional scheme of separation of powers, the executive, legislature and judiciary are expected to play different roles.
    • The executive to govern using the rule of law, the legislature to make law and the judiciary to ensure that those laws are in consonance with constitutional values.
    • The introduction of public opinion and deference to the legislature as a valid basis for adjudication by constitutional courts leads to extraordinary conclusions.
    • The virtue of constitutional courts is that they are expected to be insulated from public opinion.
    • In that regard, they are freed from the vagaries of the will of the voters and enjoy the quiet introspection and justification through legal reasoning that the law creates space for.

    Conclusion

    The notion that constitutional courts should take  the will of voters into account is at odds with the understanding of courts elsewhere, like in India.

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  • With delimitation over, a look at the slate for J&K

    Context

    Fresh delimitation was necessary for Jammu and Kashmir since the State had been divided into two Union Territories and elections could only be held under the Jammu and Kashmir Reorganisation Act, 2019.

    Issues with the report of the Delimitation Commission

    • The central question of why Jammu has gained six Assembly seats and the Valley only one has been brushed under general remarks on methodology with no explanation of how that methodology was applied.
    • Nor does it explain why Jammu’s Muslim-majority seats now comprise less than a quarter of the province’s total seats, though Muslims comprise over a third of the province’s population.
    • The commission’s recommendations further complicate the issue.
    • They propose that the President nominate Pandit migrants to two Assembly seats — why is there no reference to Pandits who remain in the Valley?
    • Indeed, the only overarching guideline which the report does describe in some detail is the commission’s desire to match the boundaries of Assembly and parliamentary constituencies.
    • Most of these questions were addressed to the commission during its consultation phase.
    •  By choosing not to do so they lost a valuable opportunity to display transparency and dispel suspicion of bias.

    Way forward

    • The only hope for a peace process in Jammu and Kashmir is if there is a clean election, statehood is speedily restored, and the new Assembly determines whether or in which form special status is required. 
    • The better option is to hold elections for existing constituencies and let the new assembly approve or query the delimitation report.
    • In fact, the commission itself proposed that the report be placed before the legislative assembly, a recommendation that makes sense only if new delimitation comes into force after and not before elections.
    • Urgent as elections are, attention to fundamental freedoms is even more important.

    Conclusion

    The peace process in Jammu and Kashmir needs to address the concerns of the people related to the restoration of statehood, and clean elections.

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  • Actions that corrode the steel frame of India

    Context

    A letter war between two sets of retired public officials (civil servants, judges and army officers), concerning the prevailing political and social situation in the country, has been widely reported in the media.

    Role of civil service

    • It is the police and magistracy, judicial courts and other regulatory agencies — not politicians — which have been authorised and empowered by law to take preventive action against potential troublemakers, enforce the laws relating to criminal, economic and other offences, and maintain public order.
    • In mature democracies, self-respecting public officials normally discharge their constitutional and legal responsibilities with honesty, integrity and their own conscience, firmly resisting the dictates of the vested interests.

    Deterioration in the standard of civil service

    • The deterioration in standards was very visible during the National Emergency declared in 1975.
    • The civil services, like other institutions including the judiciary, just caved in; the trend might have accelerated over the years.
    • Now, no one even talks of civil service neutrality.
    • Earlier, during communal or caste riots, the Administration focused on quelling the disturbances and restoring peace in the affected locality, without ever favouring one group over the other.
    • Now, there are allegations of local officers taking sides in a conflict.
    • A civil servant’s pliant and submissive behaviour means an end to civil service neutrality and the norms and values that this trait demands, does not seem to bother either the political or bureaucratic leadership.
    • Despite the protection and safeguards in Article 311 of the Constitution, politicians could have a civil servant placed in an inconvenient position or even punish him.

    Norms and values associated with a civil servant

    • Norms: The norms that define neutrality are: independence of thought and action; honest and objective advice; candour and ,‘speaking truth to power’.
    • Values: Associated with these norms are the personal values that a civil servant cherishes or ought to cherish, namely, self-respect, integrity, professional pride and dignity.
    • All these together contribute to the enhancement of the quality of administration that benefits society and the people.

    Conclusion

    Constitutional morality is not a natural sentiment,” wrote B.R. Ambedkar, the architect of the Constitution and added, “It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.”

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  • From neutral to NATO: Why Finland joining the alliance matters

    Earlier reluctant, Finland is now hurtling to join NATO making a monumental shift for a nation with a long history of wartime neutrality and staying out of military alliances.

    What is NATO?

    • NATO is a military alliance established by the North Atlantic Treaty (also called the Washington Treaty) of April 4, 1949.
    • It sought to create a counterweight to Soviet armies stationed in Central and Eastern Europe after World War II.
    • Its original members were Belgium, Canada, Denmark, France, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, the United Kingdom, and the United States.
    • NATO has spread a web of partners, namely Egypt, Israel, Sweden, Austria, Switzerland and Finland.

    Why was it founded?

    Ans. Communist sweep in Europe post-WWII and rise of Soviet dominance

    • After World War II in 1945, Western Europe was economically exhausted and militarily weak, and newly powerful communist parties had arisen in France and Italy.
    • By contrast, the Soviet Union had emerged from the war with its armies dominating all the states of central and Eastern Europe.
    • By 1948 communists under Moscow’s sponsorship had consolidated their control of the governments of those countries and suppressed all non-communist political activity.
    • What became known as the Iron Curtain, a term popularized by Winston Churchill, had descended over central and Eastern Europe.

    Ideology of NATO

    • NATO ensures that the security of its European member countries is inseparably linked to that of its North American member countries.
    • It commits the Allies to democracy, individual liberty and the rule of law, as well as to the peaceful resolution of disputes.
    • It also provides a unique forum for dialogue and cooperation across the Atlantic.

    What is Article 5?

    • Article 5 was a key part of the 1949 North Atlantic Treaty, or Washington Treaty, and was meant to offer a collective defence against a potential invasion of Western Europe.
    • It states: (NATO members) will assist the party or parties so attacked by taking forthwith, individually and in concert with the other parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.
    • However, since then, it has only been invoked once, soon after the 9/11 attack in the United States.

    Why Finland wishes to join now?

    • The country, so far, has stayed away from joining such alliances as it always wanted to maintain cordial relations with its neighbour Russia.
    • For a long time, the idea of not joining NATO or getting too close to the West was a matter of survival for the Finns.
    • However, the change in perception and overwhelming support to join NATO came about following the Russian invasion of Ukraine.
    • NATO membership would strengthen the country’s security and defence system.

    Was this a long time coming?

    • For Finns, events in Ukraine bring a haunting sense of familiarity.
    • The Soviets had invaded Finland in late 1939 and despite the Finnish army putting up fierce resistance for more than three months, they ended up losing 10 per cent of their territory.
    • The country adopted to stay non-aligned during the cold war years.
    • However, insecurities started growing since Russia annexed Crimea in 2014 as Finland brought back conscription and military spending went up.

    What about Sweden?

    • Sweden is likely to apply for membership after Finland’s final call.
    • If Finland joins, Sweden will be the only Nordic non-member of NATO.
    • Now, unlike Finland, whose policy stance was a matter of survival, Sweden has been opposed to joining the organisation for ideological reasons.

    What would a membership mean and will it benefit NATO as well?

    • NATO has shown eagerness about Finland and Sweden’s memberships.
    • Usually, becoming an official NATO member can take up to a year as it requires the approval of all existing member states.
    • Finland’s geographical location plays in its favour as once it becomes a member, the length of borders Russia shares with NATO would double.
    • This would also strengthen the alliance’s position in the Baltic Sea.

    How have Russia and other countries reacted?

    • Russia’s foreign ministry has said that they will be forced to take military steps if the membership materialises.
    • Russia has warned that this may prompt Moscow to deploy nuclear weapons in Kaliningrad, the Russian exclave between Poland and Lithuania.

     

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  • [pib] NITI Aayog launches National Data & Analytics Platform (NDAP)

    NITI Aayog has launched the NDAP for open public use.

    Note: This portal has much useful data. We can use these to substantiate our answers in mains exam.

    What is NDAP?

    • The platform aims to democratize access to public government data by making data accessible, interoperable, interactive, and available on a user-friendly platform.
    • It hosts foundational datasets from various government agencies, presents them coherently, and provides tools for analytics and visualization.
    • NDAP follows a use-case-based approach to ensure that the datasets hosted on the platform are tailored to the needs of data users from government, academia, journalism, civil society, and the private sector.
    • All datasets are standardized to a common schema, which makes it easy to merge datasets and do cross-sectoral analysis.

    Types of datasets available

    1. Internal & External Affairs
    2. Agriculture, Fisheries and Animal Husbandry
    3. Socio-Economic development
    4. Power & Natural Resources
    5. Industries
    6. Finance
    7. Health
    8. Human Resources Development
    9. Science and Technology
    10. Consumer Affairs
    11. Transport
    12. Housing
    13. Culture and Tourism
    14. Communications

    Why need such data?

    • The rise of data and digital technologies are rapidly transforming economies and societies, with enormous implications for governments’ daily operations.
    • NDAP is a critical milestone – which aims to aid India’s progress by promoting data-driven disclosure, decision making and ensuring the availability of data connecting till the last mile.

     

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  • Sedition law

    Context

    On May 11, the Supreme Court directed the Union government and the states to refrain from using the law of sedition and keep all previous cases under 124A in abeyance till the matter is reconsidered in a comprehensive way.

    Data on Section 124A and UAPA about pendency and conviction rates

    • The data on draconian laws like 124A or UAPA exposes their untenability.
    • According to the National Crime Records Bureau data, a total of 156 cases of sedition were pending in 2017.
    • In that year, only 27 cases could be disposed of at the police level by withdrawing the case or submitting a chargesheet.
    • In courts, out of the 58 cases on trial, only one conviction could be obtained and the pendency rate for the cases of sedition was close to 90 per cent.
    • The number of cases increased in 2020, the year for which the latest NCRB data is available, but with the same results.
    • Of the total 230 cases registered, only 23 were chargesheeted.
    • Pendency in court reached close to 95 per cent for the sedition cases in 2020.
    • The abysmally low rate of conviction and disposal of these cases make it clear that these charges are slapped with very flimsy or no evidence to intimidate or harass those who question the government’s fiat.
    • The picture is no different for the UAPA.
    • Cases under it have increased by about 75 per cent between 2017-2020.
    • A total of 4,827 UAPA cases were pending in 2020 —of them, only 398 could be chargesheeted in that year.
    • The pendency rate in court remained 95 per cent, indicating harassment and violation of the right to life and liberty for a great number of people who are suffering because of the diabolical prison conditions in India.

    Recommendations and measures

    • A consultation paper on sedition circulated by the Law Commission of India on August 30, 2018, found many issues that need addressing around the working of Section 124A.
    • Most recently, on May 11, the Supreme Court directed the Union government and the states to refrain from using the law of sedition.

    Conclusion

    Dissent, criticism and differences of opinion are vital for the functioning of any democracy. The witch-hunting of those who question the government of the day reminds us of medieval times and totalitarian rulers. It is time we usher in an era of free speech. For that, the sedition law must go.

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  • US to host ASEAN leaders

    US President Joe Biden will host leaders and top officials of the Association of Southeast Asian Nations (ASEAN) in Washington DC.

    About ASEAN

    • ASEAN is a political and economic union of 10 member states in Southeast Asia.
    • It brings together ten Southeast Asian states – Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam – into one organisation.
    • It was established on 8th August 1967 in Bangkok, Thailand with the signing of the Bangkok Declaration by the founding fathers of the countries of Indonesia, Malaysia, Thailand, Singapore, and the Philippines.
    • The preceding organisation was the Association of Southeast Asia (ASA) comprising of Thailand, the Philippines, and Malaysia.
    • Five other nations joined the ASEAN in subsequent years making the current membership to ten countries.

    Why in news?

    (A) Political purpose

    • ASEAN’s ‘Five Point Consensus’ to end the turmoil in Myanmar has not progressed since it was released in April last year.
    • In addition to discussing Myanmar, leaders are also expected to discuss Ukraine as well as regional issues.

    (B) Economic purpose

    • It is expected to discuss his administration’s economic plan for the region — the Indo Pacific Economic Framework (IPEF) — during this week’s summit.
    • The framework will structure cooperation across several pillars from infrastructure and supply chains to taxation.

    What is Indo Pacific Economic Framework (IPEF)?

    • The proposed IPEF is the Biden administration’s answer to questions about the United States’ economic commitment to the vital Indo-Pacific region.
    • IPEF will consist of four “pillars” of work:
    1. Fair and resilient trade (encompassing seven subtopics, including labor, environmental, and digital standards)
    2. Supply chain resilience
    3. Infrastructure, clean energy, and decarbonization
    4. Tax and anti-corruption

     

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  • India Hypertension Control Initiative (IHCI)

    A project called the India Hypertension Control Initiative (IHCI) finds that nearly 23% out of 2.1 million Indians have uncontrolled blood pressure.

    What is the IHCI?

    • Recognizing that hypertension is a serious, and growing, health issue in India, the Health Ministry, the ICMR, State Governments, and WHO-India began a five-year initiative to monitor and treat hypertension.
    • The programme was launched in November 2017.
    • In the first year, IHCI covered 26 districts across five States — Punjab, Kerala, Madhya Pradesh, Telangana, and Maharashtra.
    • By December 2020, IHCI was expanded to 52 districts across ten States — Andhra Pradesh (1), Chhattisgarh (2), Karnataka (2), Kerala (4), Madhya Pradesh (6), Maharashtra (13), Punjab (5), Tamil Nadu (1), Telangana (13) and West Bengal (5).

    What is Hypertension?

    • Hypertension is defined as having systolic blood pressure level greater than or equal to 140 mmHg or diastolic blood pressure level greater than or equal to 90 mmHg.
    • The definition also assumes taking anti-hypertensive medication to lower his/her blood pressure.

    Why need IHCI?

    • India has committed to a “25 by 25” goal, which aims to reduce premature mortality due to non-communicable diseases (NCDs) by 25% by 2025.
    • To achieve India’s target of a 25%, approximately 4.5 crore additional people with hypertension need to get their BP under control by 2025.

    What has the IHCI found so far?

    • Its most important discovery so far is that nearly one-fourth of (23%) patients under the programme had uncontrolled blood pressure, and 27% did not return for a follow-up in the first quarter of 2021.
    • There were an estimated 20 crore adults with hypertension in the country.
    • There weren’t enough validated high-quality digital blood pressure monitors in several health facilities, which affected accuracy of hypertension diagnosis.

    How prevalent is the problem of hypertension?

    • About one-fourth of women and men aged 40 to 49 years have hypertension.
    • Southern States have a higher prevalence of hypertension than the national average, according to the latest edition of the National Family Health Survey.
    • While 21.3% of women and 24% of men aged above 15 have hypertension in the country, the prevalence is the highest in Kerala where 32.8% men and 30.9% women have been diagnosed with hypertension.
    • Kerala is followed by Telangana where the prevalence is 31.4% in men and 26.1% in women.

     

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  • MTP Act 2021

    Context

    The issue of abortion is in the news again, internationally.

    Criminal law provisions related to termination of pregnancy

    • Under the general criminal law of the country, i.e. the Indian Penal Code, voluntarily causing a woman with child to miscarry is an offence attracting a jail term of up to three years or fine or both, unless it was done in good faith where the purpose was to save the life of the pregnant woman.
    • A pregnant woman causing herself to miscarry is also an offender under this provision apart from the person causing the miscarriage, which in most cases would be a medical practitioner.

    Background of the MTP Act

    • In 1971, after a lot of deliberation, the Medical Termination of Pregnancy (MTP) Act was enacted.
    • This law is an exception to the IPC provisions above.
    • Who, when, where, why and by whom? The law sets out the rules — of when, who, where, why and by whom — for accessing an MTP.
    •  This law has been amended twice since, the most recent set of amendments being in the year 2021 which has, to some extent, expanded the scope of the law.
    • The law does not recognise and/or acknowledge the right of a pregnant person to decide on the discontinuation of a pregnancy.
    • The law provides for a set of reasons based on which an MTP can be accessed.

    Reasons allowed for MTP

    • Reasons: The continuation of the pregnancy would involve a risk to the life of the pregnant woman or result in grave injury to her physical or mental health.
    • The law explains that if the pregnancy is as a result of rape or failure of contraceptive used by the pregnant woman or her partner to limit the number of children or to prevent a pregnancy, the anguish caused by the continuation of such a pregnancy would be considered to be a grave injury to the mental health of the pregnant woman.
    • The other reason for seeking an MTP is the substantial risk that if the child was born, it would suffer from any serious physical or mental abnormality.
    •  A pregnant person cannot ask for a termination of pregnancy without fitting in one of the reasons set out in the law.
    • Gestational age of pregnancy: The other set of limitations that the law provides is the gestational age of the pregnancy.
    • The pregnancy can be terminated for any of the above reasons, on the opinion of a single registered medical practitioner up to 20 weeks of the gestational age.
    • From 20 weeks up to 24 weeks, the opinion of two registered medical practitioners is required.
    • Any decision for termination of pregnancy beyond 24 weeks gestational age, only on the ground of foetal abnormalities can be taken by a Medical Board as set up in each State, as per the law.
    • The law, as an exception to all that is stated above, also provides that where it is immediately necessary to save the life of the pregnant woman, the pregnancy can be terminated at any time by a single registered medical practitioner.

    Issues with the MTP Act provisions

    • While India legalised access to abortion in certain circumstances much before most of the world did the same, unfortunately, even in 2020 we decided to remain in the logic of 1971.
    • Right to health and right to life: By the time the amendments to the MTP Act were tabled before the Lok Sabha in 2020, a number of cases came before the courts.
    • In these cases, the courts had articulated the right of a pregnant woman to decide on the continuation of her pregnancy as a part of her right to health and right to life, and therefore non-negotiable.
    • Violation of right to privacy: In right to privacy judgment of the Supreme Court of India it was held that the decision making by a pregnant person on whether to continue a pregnancy or not is part of such a person’s right to privacy as well and, therefore, the right to life.
    • The standards set out in this judgment were also not incorporated in the amendments being drafted.
    • Not in sync with central laws: The new law is not in sync with other central laws such as the laws on persons with disabilities, on mental health and on transgender persons, to name a few.
    • In conflict with other laws: The amendments also did not make any attempts to iron out the conflations between the MTP Act and the Protection of Children from Sexual Offences (POCSO) Act or the Drugs and Cosmetics Act, to name a few.

    Conclusion

    While access to abortion has been available under the legal regime in the country, there is a long road ahead before it is recognised as a right of a person having the capacity to become pregnant to decide, unconditionally, whether a pregnancy is to be continued or not.

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  • Marital Rape

    Context

    On May 10, 2022, a two-judge bench of the Delhi High Court gave a split ruling on marital rape, thus ensuring a future hearing in the Supreme Court.

    Why rape and marriage were seen as mutually exclusive

    • The concepts of rape and marriage were seen as mutually exclusive – they could not be brought together.
    • Across the world, and till very recently, marriage has been explicitly treated as being outside the purview of rape.
    • Even in the Western countries that we associate with the more “advanced” practices of gender equality, marital rape was treated as an exception to the crime of rape till the early 1990s.
    • In the absence of a universal definition, several scholars take marriage to be an institution where a man and a woman live together, have sexual relations and engage in cooperative economic activity.
    • Link between marriage and property: Others have emphasised the link between marriage and property.
    • The dominant form of marriage in the modern West became quite distinctly patriarchal, visible in late 18th-century British law, for instance, whereby a wife became the property of her husband upon marriage.
    • Husbands, therefore, had the right to access their wives sexually, without the question of coercion or consent being on the horizon in the first place.
    • As property, wives had to be protected from the (illegal) sexual access of other men, and here too, their consent was irrelevant.

    Introduction of marital rape

    • If what distinguishes the relationship of husband and wife from other relations between men and women is the legitimate expectation of sexual relations, then the introduction of marital rape signals the entry of a new and equally legitimate expectation: A wife’s consent to sexual relations is essential, and in this, she is no different from other women.
    • Husbands no longer enjoy unquestioned rights over the bodies of their wives — this is what it means for a wife to be a person with bodily integrity.

    Conclusion

    It is strange, indeed, that most parts of the world, India included, became modern while continuing to believe that wives are the property of husbands.

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