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GS Paper: GS2

  • What is Non-price Competition?

    Data privacy can take the form of non-price competition and abuse of dominance can lower privacy protection, a study by the Competition Commission of India (CCI) has said.

    Try this PYQ:

    Q.Right to Privacy is protected as an intrinsic part of Right to Life and Personal Liberty. Which of the following in the Constitution of India correctly and appropriately imply the above statements?

    (a) Article 14 and the provisions under the 42nd Amendment to the Constitution

    (b) Article 17 and the Directive Principles of State Policy in Part IV

    (c) Article 21 and the freedoms guaranteed in Part III

    (d) Article 24 and the provisions under the 44th Amendment to the Constitution

    What is Non-price Competition?

    • Non-price competition is a marketing strategy “in which one firm tries to distinguish its product or service from competing products on the basis of attributes like design and workmanship”.
    • It often occurs in imperfectly competitive markets as it exists between two or more producers that sell goods and services at the same prices but compete through non-price measures.
    • Such measures include marketing schemes and greater quality or any sustainable competitive advantage other than price.

    What is CCI’s observation?

    • The CCI study made observations about non-price factors such as quality of service (QoS), data speeds etc. which are likely to be the new drivers of competitive rivalry between service providers in the telecom sector.
    • CCI noted that an aspect of data in the context of competition in digital communications market is the conflict between allowing access and protecting consumer privacy.

    Privacy at stake

    • Abuse of dominance can take the form of lowering the privacy protection and therefore fall within the ambit of antitrust as low privacy standard implies lack of consumer welfare.
    • Privacy can take the form of non-price competition, said the CCI.
    • On other non-price factors of competition, CCI found that consumers ranked network coverage at the top followed by customer service despite their Privacy.

  • Appointment of the Law Commission

    The Supreme Court has asked the Home and Law Ministries to explain the nearly three-year-long lapse in making appointments to the Law Commission.

    Try this PYQ:

    Q.The power to increase the number of judges in the Supreme Court of India is vested in

    (a) The President of India

    (b) The Parliament

    (c) The Chief Justice of India

    (d) The Law Commission

    What is the news?

    • The posts of Chairperson and Members have been vacant ever since the 21st Law Commission under the former Supreme Court judge, Justice B.S. Chauhan completed its tenure in August.
    • The government approved the constitution of the 22nd Law Commission on February 19 last.
    • However, it has not appointed the Chairperson and Members to date.

    What is the Law Commission?

    • It is an executive body established by an order of the Government of India. The first law commission of independent India was established post Independence in 1955
    • Tenure: 3 Years
    • Function: Advisory body to the Ministry of Law and Justice for “Legal Reforms in India”
    • Recommendations: NOT binding
    • First Law Commission was established during the British Raj in 1834 by the Charter Act of 1833
    • Chairman: Macaulay; It recommended for the Codifications of the IPC, CrPC etc.

    Composition

    The 22nd Law Commission will be constituted for a period of three years from the date of publication of its Order in the Official Gazette. It will consist of:

    1. a full-time Chairperson;
    2. four full-time Members (including Member-Secretary)
    3. Secretary, Department of Legal Affairs as ex-officio Member;
    4. Secretary, Legislative Department as ex officio Member; and
    5. not more than five part-time Members.

    Terms of reference

    • The Law Commission shall, on a reference made to it by the Central Government or suo-motu, undertake research in law and review of existing laws in India for making reforms therein and enacting new legislations.
    • It shall also undertake studies and research for bringing reforms in the justice delivery systems for elimination of delay in procedures, speedy disposal of cases, reduction in the cost of litigation, etc.

    The Law Commission of India shall, inter-alia: –

    • identify laws that are no longer needed or relevant and can be immediately repealed
    • examine the existing laws in the light of DPSP and Preamble
    • consider and convey to the Government its views on any subject relating to law and judicial administration that may be specifically referred to it by the Government through Ministry of Law and Justice (Department of Legal Affairs);
    • Consider the requests for providing research to any foreign countries as may be referred to it by the Government through the Ministry of Law and Justice (Department of Legal Affairs);
    • take all such measures as may be necessary to harness law and the legal process in the service of the poor;
    • revise the Central Acts of general importance so as to simplify them and remove anomalies, ambiguities, and inequities

  • Ayushman Bharat for CAPFs

    Union Home Minister has rolled out the ‘Ayushman CAPF’ scheme, extending the benefit of the central health insurance programme to the personnel of all Central Armed Police Forces (CAPFs) in the country.

    Who are the CAPFs?

    • The CAPFs refers to uniform nomenclature of five security forces in India under the authority of the Ministry of Home Affairs.
    • Their role is to defend the national interest mainly against the internal threats.
    • They are the Border Security Force (BSF), Central Reserve Police Force (CRPF), Central Industrial Security Force (CISF), Indo-Tibetan Border Police (ITBP), Sashastra Seema Bal (SSB)

    Ayushman CAPF

    • Under this scheme, around 28 lakh personnel of CAPF, Assam Rifles and National Security Guard (NSG) and their families will be covered by ‘Ayushman Bharat: PM Jan Arogya Yojana’ (AB PM-JAY).
    • For the CAPF, the existing health coverage was not comprehensive as compared to other military forces.

    Do you know?

    The goal of universal health coverage (UHC) as stated in the UN Sustainable Development Goals (SDGs no. 3) is one of the most significant commitments to equitable quality healthcare for all.

    About Ayushman Bharat

    • PM-JAY aims to provide free access to healthcare for 40% of people in the country.
    • It is a centrally sponsored scheme and is jointly funded by both the union government and the states.
    • It was launched in September 2018 by the Ministry of Health and Family Welfare.
    • The ministry has later established the National Health Authority as an organization to administer the program.

    Key features:

    • Providing health coverage for 10 crores households or 50 crores Indians.
    • It provides a cover of 5 lakh per family per year for medical treatment in empanelled hospitals, both public and private.
    • Offering cashless payment and paperless recordkeeping through the hospital or doctor’s office.
    • Using criteria from the Socio-Economic and Caste Census 2011 to determine eligibility for benefits.
    • There is no restriction on family size, age or gender.
    • All previous medical conditions are covered under the scheme.
    • It covers 3 days of pre-hospitalization and 15 days of post-hospitalization, including diagnostic care and expenses on medicines.
    • The scheme is portable and a beneficiary can avail medical treatment at any PM-JAY empanelled hospital outside their state and anywhere in the country.

    Note these features. They cannot be memorized all of sudden but can be recognized if a tricky MCQ comes in the prelims.

    Must read:

    [Burning Issue] Ayushmaan Bharat

  • New WhatsApp Privacy Policy

    Privacy policy update by the WhatsApp recently led to widespread protest from the user forcing company to put the update on hold. If India had made Personal Protection Bill into the law, the privacy policy update would have been illegal. The article deals with this issue.

    About WhatsApp

    • WhatsApp’s unique blend of text, audio, and voice messaging and calling platform.
    • In November 2014, WhatsApp adopted the Signal protocol for end-to-end encryption after its acquisition by Facebook.
    • WhatsApp has two billion users worldwide, of which 400 million are in India, the largest in any country.

    What the privacy policy update is about

    • The updated policy seeks consent from users to allow the platform to share their data with Facebook and its companies,
    • It means that WhatsApp would share transaction data, mobile device information, IP addresses, and other metadata on how users interact with businesses on WhatsApp.
    • Such sharing would be done with the user being notified before the start of a chat if the business uses Facebook to store and analyze data and the user would have the option of blocking the business.
    • The update would defy the principle of purpose limitation that has been the yardstick of addressing privacy concerns at a global level.

    What is the principle of purpose limitation

    • The Indian government has also sent a strong note to WhatsApp, seeking the company’s response to 14 queries.
    • This note has sent a clear message to WhatsApp to not subject Indian users to greater information security risks and vulnerabilities with the consolidation of data from WhatsApp and Facebook.
    • In the note, the government referred to the principle of purpose limitation provisions in the Personal Data Protection Bill (PDPB) currently being discussed by a joint select committee.
    • Had the bill been passed by now, WhatsApp’s move would have been illegal.
    • Provisions in the bill required that every data intermediary has to take explicit permission from the user whose data would be harvested.
    • Even the method of data classification into sensitive personal data and critical data has been defined and their processing possibilities mentioned in the bill.

    Way forward

    • The government should make the Personal Data Protection Bill into law so that such restrictive practices can never be introduced in the first place.
    • It is due to such law, WhatsApp did make an exception for its users in the European Union.
    • The Competition Commission of India should take note that this is a classic case of an organization using its near-monopolistic power to push through something that is not in the consumer interest.

    Consider the question “What is the principle of purpose limitation in the Personal Data Protection Bill? How it can help user protect its privacy?”

    Conclusion

    As Digital India expands and brings in more users from the current base of 70 crores, and more take to social media for communications and business, they must be ensured a safer digital space, given that most wouldn’t be aware of the reach of the data being generated.

  • A new framework around caste and the census

    The article suggests the ways to make the most of the data collected through Census and the SECC.

    Census and issues with it

    • The synchronous decennial Census has evolved over time and has been used by the government, policymakers, academics, and others.
    • Though Census is both a data collection effort and a technique of governance, it is criticized for not being useful enough for a detailed and comprehensive understanding of a complex society.
    •  There is a lack of depth in the Census where some issues are concerned.

    The debate around full-scale Caste Census

    • Since Independence, aggregated Census data on the Scheduled Castes and Scheduled Tribes on certain parameters such as education have been collected.
    • There is a growing demand for a full-scale caste census to capture contemporary Indian society and to understand and remedy inequalities.
    • While others believe that this large administrative exercise of capturing caste and its complexities is not only difficult but also socially untenable.
    • There have been concerns that counting caste may help solidify or harden identities, or that caste may be context-specific, and thus difficult to measure.
    • The other concern is whether an institution such as a caste can even be captured completely by the Census.

    Socio-Economic Caste Census: how it is different from Census

    • Following debate over full-scale caste census, the Socio-Economic and Caste Census (SECC) was conducted in 2011.
    • The SECC, which collected the first figures on caste in Census operations since 1931, is the largest exercise of the enumeration of caste.
    • Questions remain on whether the SECC is able to cover the effects of caste as an aspect of Indian social structure.
    • This was a distinct exercise from the Census of 2011.
    • The Census and the SECC have different purposes.
    • Since the Census falls under the Census Act of 1948, all data are considered confidential, whereas the SECC data is open for use by Government departments to grant and/or restrict benefits to households.
    • The Census thus provides a portrait of the Indian population, while the SECC is a tool to identify beneficiaries of state support.

    Way forward

    • What is needed is a discussion on the caste data that already exists, how it has been used and understood by the government.
    • Linking and syncing aggregated Census data to other large datasets such as the National Sample Surveys or the National Family Health Surveys that cover issues that the Census exercises do not, such as maternal health, would be significant for a more comprehensive analysis.
    • This linking of the Census with the National Sample Survey data has been suggested in the past by scholars such as Mamta Murthi and colleagues.
    • Census operations across the world are going through significant changes, employing methods that are precise, faster, and cost-effective, involving coordination between different data sources.
    • Care must however be taken to ensure that digital alternatives and linking of data sources involving Census operations are inclusive and non-discriminatory, especially given the sensitive nature of the data being collected.
    • Delay in the release of data needs to be reduced.
    • There needs to be a closer and continuous engagement between functionaries of the Census and SECC, along with academics and other stakeholders concerned.

    Consider the question “How Socio-Economic and Caste Census is different from the Census? How linking and syncing of  these data with other databases could help in the governance?”

    Conclusion

    Data collected through both the exercises serve an important purpose in the governance of the country, however, there is scope to widen the use of data if the steps suggested here are implemented.

  • Making a Law ‘Operational’

    In the ongoing stalemate between protesting farmers and the Centre, the government has repeated its offer of keeping the three contentious farm laws on hold for one to one-and-a-half years.

    Bringing/removing a law

    • Parliament has the power to make a law and to remove it from the statute books (a law can be struck down by the judiciary if it is unconstitutional).
    • But the passing of a Bill does not mean that it will start working from the next day.
    • There are three more steps for it to become a functioning law.

    Try this PYQ:

    Q.Who/Which of the following is the custodian of the Constitution of India?

    (a) The President of India

    (b) The Prime Minister of India

    (c) The Lok Sabha Secretariat

    (d) The Supreme Court of India

    Making a law operational

    • The first step is the President giving his or her assent to the Bill.
    • Then the law comes into effect from a particular date. President Kovind signed the three farm Bills into law within a week of their passing in September 2020.
    • And finally, the government frames the rules and regulations to make the law operational on the ground.
    • The completion of these steps determines when the law becomes functional.

    Presidents’ actions

    • Article 111 of the Constitution specifies that the President can either sign off on the Bill or withhold his consent.
    • The President rarely withholds their assent to a Bill.
    • The last time it happened was in 2006 when President APJ Abdul Kalam refused to sign a Bill protecting MPs from disqualification for holding an office of profit.
    • A Bill is sent to Parliament for reconsideration if the President withholds his or her assent on it.
    • And if Parliament sends it back to the President, he or he has no choice but to approve it.

    A curious case of date of effect

    • The next step is deciding the date on which the law comes into effect.
    • In many cases, Parliament delegates to the government the power to determine this date.
    • The Bill states that the law “shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act”.

    Example:  Parliament passed the Recycling of Ships Act in December 2019. In October 2020, the government brought Section 3 of the law into force.  This section empowers the government to designate an officer to supervise all ship recycling activities in India.

    Giving effect to the implementation

    • There are also instances when the government does not bring a law into force for many years.
    • Two examples are the National Environment Tribunal Act and the Delhi Rent Control Act, which Parliament passed during PM P V Narasimha Rao’s tenure.
    • The government never brought these laws into force, which were passed in 1995 and cleared by the President.
    • The NGT Act finally repealed the environmental tribunal law in 2010. And a Bill to repeal the Delhi Rent Control Act introduced in 2013 is still pending in Rajya Sabha

    Rules & regulations to be made

    • For the law to start working on the ground, individuals need to be recruited or given the power, to administer it.
    • The implementing ministry also needs to finalise forms to gather information and provide benefits or services.
    • These day-to-day operational details are called rules and regulations. And Parliament gives the government the responsibility of making them. These regulations are critical for the functioning of law.
    • If the government does not make rules and regulations, law or parts of it will not get implemented.

    Example: The Benami Transactions Act of 1988 is an example of a complete law remaining unimplemented. For 25 years, such properties were immune from seizure in the absence of framing relevant government rules. The law was finally repealed in 2016 and replaced with a new one.

    A final word on implementation

    • Parliament has recommended that the government make rules within six months of passing a law.
    • But parliamentary committees have observed that this recommendation is being followed in breach by various ministries.
    • The government not only has the power to make rules but can also suppress rules made by it earlier.

  • [pib] Shramshakti Portal

    The Union Minister of Tribal Affairs has launched the “ShramShakti” Portal.

    Earlier we had ONORC move, now a repository for migrant workers. Keep a tab on all such updates for the welfare of migrant workers.

    Shramshakti Portal

    • It is a National Migration Support Portal.
    • It will record various data including demographic profile, livelihood options, skill mapping, and migration pattern.
    • It would effectively help in the smooth formulation of state and national level programs for migrant workers.

    Why need such a portal?

    • Migrants all over the country had to face after the lockdown was announced due to the pandemic caused by a coronavirus.
    • The migration of the tribal population is distress-driven and the migrants are exposed to difficult and unsafe conditions.
    • Sometimes they face trafficking or wage harassment issues including many occupational hazards at the workplace.
    • The lack of real-time data of migrants was the biggest challenge for governments in formulating effective strategies and policy decisions for the welfare of migrant workers at both source and destination states.

    Benefits of the portal

    • The tribal migration repository would be able to successfully address the data gap and empower migrant workers who generally migrate in search of employment and income generation.
    • It would also help the government for linking the migrant population with the existing Welfare Scheme- under Aatmanirbhar Bharat.

    A move for tribals

    • Tribal migrant workers often have low awareness about their rights and entitlements and ways to access services and social security in source and destination areas.
    • With this, they will be able to demand and access services, rights, and entitlements related to livelihood and social security at their village before migration, as well after migration at destination towns and cities.

  • Mercy petition

    The article highlights the issue of delay in carrying out the dealth penalty and issues associated with it.

    Review of India’s position on the death penalty

    • The delay in carrying out the death penalty is one of the reasons to review India’s position on capital punishment.
    • The debate on the efficacy of the death penalty in reducing crime has been going on for several decades.
    • A few years ago, the issue of abolishing capital punishment was raised in the Rajya Sabha but was rejected by a voice vote.
    • The then Minister of State for Home Affairs stated that the government was not contemplating abolition of the death penalty.
    • In 2015, the Law Commission of India proposed abolishing the death penalty and sought the comments of States and Union Territories on the subject.
    • India figures among the 56 nations in the world that have retained the death penalty.

    Issue of delay in carrying out the punishment

    • The prolonged detention of death row convicts in prison is not just inhuman but also against the canons of justice.
    • The delay coupled with long years of solitary confinement leads to immense psychological trauma.
    • It is small wonder that the courts tend to take a lenient view and reduce the sentence when such cases of prolonged years of detention come before them.
    • A time frame needs to be fixed for the President to dispose of mercy petitions.
    •  Delays in investigations, court hearings, and administrative steps to be taken after the final verdict need to be inquired into, and responsibility fixed.

    Consider the question “Against the backdrop of delay in carrying out the dealth penalty in India, take the review of India’s position on the abolition of death penalty.”

    Conclusion

    With the changing time, we must change and so do the way we punish people. Capital punishment should be abolished in the country and until then, the inordinate delays in carrying out punishment should be avoided.

  • Defending liberty against selective prosecution

    The article examines the issue of selective prosecution and Indian judiciary’s approach toward it. It also highlights the importance of recent Goswami case.

    Selective prosecution: Form of abuse of state power

    • Recently the case involving bail application of a T.V. anchor brought to the fore issue of selective prosecution.
    • The illegal selection of accused based on grounds prohibited by the Constitution is called “selective prosecution”.
    • In case of selective prosecution, the police and enforcement agencies selectively target political and ideological opponents of the ruling dispensation to interrogate, humiliate, harass, arrest, torture and imprison.
    • It is one of the oldest, most pernicious and widespread forms of abuse of state power.

    How it is illegal: Two independent legal issues

    1) Exercise of prosecutorial discretion

    • The applicable legal standard is that while the police and prosecutors in common law jurisdictions enjoy vast discretion in deciding who they may pursue and who they may spare.
    • However, the choice of accused must not be based on grounds that violate Constitutional rights, including the Article 14 right to equal protection of the law.
    • The accused should not be selected, either explicitly or covertly, on constitutionally prohibited grounds.

    2) Merit of the case filed

    • When the choice of accused runs contrary to the Constitution, the entire criminal proceeding is vitiated, irrespective of the determination of the second issue, viz., whether the accused are convicted or acquitted on the charges brought against them.
    • Once the proceedings fail under the first issue, there is no legal basis to proceed to the second issue., i.e., trial on the merits of the case.
    • The theory is that the Constitution cannot be violated to uphold the law — such an approach would spell doom for the Constitution.
    • The selective prosecution claim must be adjudicated as a threshold issue, with the prosecution being quashed at the outset of the criminal case if the claim is justified.
    • In the context of this discussion, the constitutionally prohibited ground we are confronting in India is the political or ideological affiliation of the accused.
    • It is an arbitrary ground that violates the Article 14 guarantee of equal protection of the law.

    Approach of judiciary

    • Our courts have not recognised selective prosecution as an independent claim.
    • This is because courts assume that lawfulness of prosecution can only be taken up after the trial, if the accused is acquitted.
    • The 2018 Report of the Law Commission on ‘Wrongful Prosecution (Miscarriage of Justice): Legal Remedies’ discusses remedies for wrongful prosecution available only if and after the accused is acquitted.
    • Remedy after acquittal comes far too late, well after a brutal and long drawn out criminal justice process that upends the lives of the victims.
    • Also, the right against selective prosecution cannot be extinguished by conviction.
    • Separate from post-acquittal actions for wrongful prosecution (which will still be available), the claim of selective prosecution is a threshold issue that is required to be adjudicated at the outset of criminal proceedings even during the investigation stage irrespective of the merit of the charges.

    Importance of Goswami case

    • The case provides a much needed and long awaited legal opening to strengthen the recognition and use of the selective prosecution claim in India to counter politically coloured prosecution.
    • The judgment says, “Courts should be alive to the needof ensuring that the law does not become a ruse for targeted harassment ”.
    • The Goswami judgment also quotes the 2018 Supreme Court holding in Romila Thapar v. Union of India that, “[T]he basic entitlement of every citizen who is faced with allegations of criminal wrongdoing is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21.”

    Consider the question “How selective prosecution could threten the liberty of person? How Indian judiciary approaches the issue of selective prosecution and what are the issue with the approach adopted by the judiciary?”

    Conclusion

    To strengthen the protection of civil liberty, equality and democracy, it is time our courts — at all levels — recognise selective prosecution as a threshold constitutional defence against the abuse of police and prosecutorial power.

  • TN Governor to decide on Ex-PM assassin Pardon

    Tamil Nadu Governor would take a decision as per the Constitution in the next three or four days on the plea for release filed by A.G. Perarivalan, who is undergoing life imprisonment for the assassination of former PM Rajiv Gandhi in 1991.

    Give your personal views in favour and against Capital Punishment in the comment box.

    What is the news?

    • The court noted in its short order that the Solicitor General submitted that the application filed by the petitioner Perarivalan under Article 161 of the Constitution.
    • The TN State Cabinet had earlier made the recommendation to remit the life sentences of seven convicts, including Perarivalan in September 2018.
    • The new turn of events when the Additional Solicitor General for the Centre, had argued recently that the pleas for pardon and release should go to the President instead of the Governor.

    What does Pardon mean?

    • A pardon is a government/executive decision to allow a person to be absolved of guilt for an alleged crime or other legal offense as if the act never occurred.

    Why need a Pardon?

    • Pardons can be granted when individuals are deemed to have demonstrated that they have “paid their debt to society”, or are otherwise considered to be deserving of them.
    • Pardons are sometimes offered to persons who were either wrongfully convicted or who claim that they were wrongfully convicted.
    • Pardons are sometimes seen as a mechanism for combating corruption, allowing a particular authority to circumvent a flawed judicial process to free someone that is seen as wrongly convicted.

    What does Article 161 say?

    • Article 161 of the Constitution provides the Governor with the power to remit or commute the sentence of any prisoner.
    • The Governor’s decision will be subject to judicial review by the constitutional courts.

    Supreme court’s observations

    • The Constitution Bench in 2015, in a majority decision, had held that the States cannot unilaterally remit the sentences of life convicts in cases investigated by a Central agency under a Central law.
    • The assassination case was probed by the CBI.
    • In compliance with the 2015 verdict, the Tamil Nadu government wrote to the Centre in 2016, proposing the grant of remission to the convicts. The State wanted the Centre to concur.
    • After a wait of over two years, the Centre rejected the State’s proposal, saying this was an unparalleled act in the annals of crimes committed in this country.

    Arguments in Perarivalan’s petition seeking pardon

    • Perarivalan had been pleading for release citing that he was 19 when he was arrested.
    • He was the only male child of his parents, there were no records of criminal antecedents, and that he had excellent conduct in his entire prison life.
    • His petition also cited UG and PG degrees, and that he was the university topper, Gold medalist in diploma in DTP, and that he completed more than eight diploma and certificate courses during his prison term.
    • His probation officer gave a report about lapses in recording his confession statement that handed out maximum punishment in his case.

    Basis of his innocence

    • Perarivalan cannot be called innocent before the law as he continues to be a convicted prisoner serving imprisonment.
    • He was accused of having bought two battery cells for Sivarasan, the LTTE man who masterminded the conspiracy.
    • He was sentenced to death based on this crucial confession statement.

    Significance of the convicts’ release

    • The release of seven convicts is a demand raised by not only the ruling party of TN but the main opposition too.
    • All TN politicians voiced that the judiciary should be able to reform and let them live as good citizens to uphold the high values of reformatory justice and restitution.