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GS Paper: GS2

  • SC uphold changes in SC/ST Atrocities Law

     

    The Supreme Court has upheld the SCs/STs (Prevention of Atrocities) Amendment Act of 2018, which nullified it’s own controversial March 20, 2018 judgement.  Earlier judgment had diluted the original 1989 legislation, saying they were using its provisions to file false criminal complaints against innocent persons.

    Why such ruling?

    • The 2018 Act had nullified a March 20 judgment of the Supreme Court, which allowed anticipatory bail to those booked for committing atrocities against Scheduled Castes and Scheduled Tribes members.
    • The original 1989 Act bars anticipatory bail.
    • The Supreme Court verdict saw a huge backlash across the country. Several died in ensuing protests and property worth crores of rupees was destroyed.
    • The government reacted by filing a review petition in the Supreme Court and subsequently amended the 1989 Act back into its original form.
    • The government had enacted the Amendments, saying the SCs and STs continued to face the same social stigma, poverty and humiliation which they had been subjected to for centuries.

    Why was the SC/ST Act enacted?

    • Since crimes against SCs and STs are fundamentally hate crimes, the Rajiv Gandhi enacted the Act in 1989.
    • It gave furtherance to the provisions for abolition of untouchability (Article 17) and equality (Articles 14, 15).

    Why it was amended?

    • The Bench reasoned that human failing and not caste is the reason behind the lodging of false criminal complaints.
    • The Supreme Court condemned its own earlier judgment, saying it was against “basic human dignity” to treat all SC/ST community members as “a liar or crook.”
    • Caste of a person cannot be a cause for lodging a false report, the verdict observed.
    • Members of the SCs and STs, due to backwardness, cannot even muster the courage to lodge an FIR, much less, a false one, the judgment noted.

    The Subhash Kashinath Mahajan case

    • Mahajan was Director of Technical Education in Maharashtra.
    • Two non-SC officers had made an adverse entry on the character and integrity of a Dalit employee, whom Mahajan in 2011 denied sanction for prosecution against those officers.
    • The denial was challenged on the ground that the state government and not the director was the competent authority.
    • The apex Court held that safeguards against blackmail are necessary as by way of rampant misuse, complaints are largely being filed against public servants with oblique motive for the satisfaction of vested interests.

    In what manner had the 2018 judgment diluted provisions for arrest?

    ANTICIPATORY BAIL

    • In section 18 of the Act, Parliament had laid down that the provision of anticipatory bail under Section 438 of the CrPC of 1973 will not be available to an accused under the Act.
    • The provision of anticipatory bail was introduced for the first time on the recommendation of 41st Law Commission in 1973.
    • It is a statutory right, not part of the right to life and personal liberty under Article 21 of the Constitution, and thus there is no fundamental right to anticipatory bail.
    • In the 2018 judgment, the Court laid down safeguards, including provisions for anticipatory bail and a “preliminary enquiry” before registering a case under the Act.
    • While review the Bench said Section 18 was enacted to instil a sense of deterrence and relied on Kartar Singh (1994) in which the court had held that denial of anticipatory bail does not violate Article 21.

    FIR

    • The court had observed that “liberty of one cannot be sacrificed to protect another”, and the “Atrocities Act cannot be converted into charter for exploitation or oppression by unscrupulous persons or by police for extraneous reasons”.
    • He ordered that neither is an FIR to be immediately registered nor are arrests to be made without a preliminary inquiry by an SSP.
    • An arrest can only be made if there is “credible” information and police officer has “reason to believe” that an offence was committed.
    • In the review judgment, Justice Mishra said public servants already have a remedy in false cases under CrPC Section 482 and can get such FIRs quashed by High Courts.
    • He rejected the need of an SSP’s approval for arrest.

    PERMISSION

    • In 2018, the court had said that even if a preliminary inquiry is held and a case registered, arrest is not necessary, and that no public servant is to be arrested without the written permission of the appointing authority.
    • The court extended the benefit to other citizens and said they cannot be arrested without the written permission of the SSP of the district.
    • In review the court said that the decision on arrest is to be taken by the investigating authority, not the appointing authority.

    Were other provisions diluted?

    • The court had observed that interpretation of Atrocities Act should promote constitutional values of fraternity and integration of the society.
    • This may require ‘check on false implication of innocent citizens on caste lines’.
    • Observing that the law should not result in caste hatred, the court overlooked the fact that the Act had to be enacted due to caste hatred.
    • The review judgment said that such riders for registering a report are wrong and it would give an advantage to upper castes whose complaints can be registered without any such inquiry.

    How frequently do SCs/STs face atrocities?

    • A crime is committed against an SC every 15 minutes. Six SC women are raped every day on an average.
    • Between 2007 and 2017, there was a 66 per cent growth in crimes against SCs.
    • Data from the National Crime Record Bureau, which the 2018 judgment was based on, showed cases of rape of SC women had doubled in 10 years.

    Assist this newscard with:

    [Burning Issue] SC/ST Prevention of Atrocities Act

  • Private Members Bill

    A member in Rajya Sabha appeared to abandon his plan of introducing a private member’s Bill on the Uniform Civil Code (UCC), a code that would be applicable to all religious communities in personal matters such as marriage, divorce, inheritance and adoption.

    Private Member’s Bill

    • A private member’s Bill is different from a government Bill and is piloted by an MP who is not a minister. An MP who is not a minister is a private member.
    • Individual MPs may introduce private member’s Bill to draw the government’s attention to what they might see as issues requiring legislative intervention.

    Difference between private and government Bills

    • While both private members and ministers take part in the lawmaking process, Bills introduced by private members are referred to as private member’s Bills and those introduced by ministers are called government Bills.
    • Government Bills are backed by the government and also reflect its legislative agenda.
    • The admissibility of a Private Bill is decided by the Chairman in the case of the Rajya Sabha and the Speaker in the case of the Lok Sabha.
    • Before the Bill can be listed for introduction, the Member must give at least a month’s notice, for the House Secretariat to examine it for compliance with constitutional provisions and rules on legislation.
    • While a government Bill can be introduced and discussed on any day, a private member’s bill can only be introduced and discussed on Fridays.

    Has a private member’s bill ever become a law?

    • No private member’s Bill has been passed by Parliament since 1970.
    • To date, Parliament has passed 14 such Bills, six of them in 1956.
    • In the 14th Lok Sabha, of the over 300 private member’s Bills introduced, roughly four per cent were discussed, the remaining 96 per cent lapsed without a single dialogue.
    • The selection of Bills for discussion is done through a ballot.

  • Arsenic Contamination

    As the geography of arsenic contamination spreads, there is an urgent need for governments to reorient mitigation measures. That’s because the focus till now has only been on drinking water, but new research says arsenic has contaminated our food chain.

    Arsenic contamination of water

    • Arsenic contamination in groundwater is one of the most crippling issues in the drinking water scenario of India.
    • According to the latest report of the Central Ground Water Board (CGWB), 21 states across the country have pockets with arsenic levels higher than the BIS stipulated permissible limit of 0.01 milligram per litre (mg/l).
    • The states along the Ganga-Brahmaputra-Meghna (GBM) river basin — Uttar Pradesh, Bihar, Jharkhand, West Bengal and Assam — are the worst affected by this human-amplified geogenic occurrence.
    • In India, arsenic contamination was first officially confirmed in West Bengal in 1983.
    • Close to four decades after its detection, the scenario has worsened.
    • About 9.6 million people in West Bengal, 1.6 million in Assam, 1.2 million in Bihar, 0.5 million in Uttar Pradesh and 0.013 million in Jharkhand are at immediate risk from arsenic contamination in groundwater.

    Effects of arsenic poisoning

    • Long-term exposure to arsenic in drinking water can cause cancer in the skin, lungs, bladder and kidney. It can also cause other skin changes such as thickening and pigmentation.
    • The likelihood of effects is related to the level of exposure to arsenic and in areas where drinking water is heavily contaminated, these effects can be seen in many individuals in the population.
    • Increased risks of lung and bladder cancer and skin changes have been reported in people ingesting arsenic in drinking water at concentrations of 50 ”g/litre, or even lower.

    Affecting food

    • Recent research says arsenic contamination in groundwater has penetrated the food chain.
    • It eventually causes photo-accumulation of arsenic in the food crops, especially in the leaves, can emanate from contaminated water sprayed on them.
    • Yet the focus remained on drinking water, and the affected regions became the primary stake-holder in the mitigation approach.

    Way forward

    • Mitigation measures — that are currently focused on drinking water — must have a more comprehensive approach to ensure arsenic-free water for drinking and agricultural products.
    • That means that the government must check for arsenic in water used for agricultural produce.
    • Both the Union and state governments must work toward facilitating research that can investigate the accumulation of arsenic in crops and addressing the agricultural concerns of the affected regions.
    • They must watch out for arsenic percolation in the food chain and the possibilities of biomagnification.
    • The government needs to also conduct a larger study on the arsenic contamination of our food chain and its health impacts to understand its spatial spread through the agricultural supply chain.

  • Reservation as right: on Supreme Court judgment

    Context

    The recent Supreme Court judgment, that there is no fundamental right to claim reservation in promotions, has caused some political alarm.

    Received wisdom in affirmative action jurisprudence

    • Presence of sound legal framework for a reservation: The received wisdom in affirmative action jurisprudence is that a series of Constitution amendments and judgments have created a sound legal framework for reservation in public employment, subject to the fulfilment of certain constitutional requirements.
    • Solidification of reservation as an entitlement: It is also accepted that the framework has solidified into an entitlement for the backward classes, including the SCs and STs.

    What does the judgement mean?

    • Reservations are not rights: The latest judgment is a reminder that affirmative action programmes allowed in the Constitution flow from “enabling provisions” and are not rights as such.
    • Not a new legal position: This legal position is not new. Major judgments- these include those by Constitution Benches-note that Article 16(4), on the reservation in posts, is enabling in nature.
    • The state is not bound to provide reservation: In other words, the state is not bound to provide reservations. But if the state provides reservations, it must satisfy the following two criteria-
      • For the backward class: It must be in favour of sections that are backward.
      • Inadequately represented: And inadequately represented in the services based on quantifiable data.
    • What happened in the Uttarakhand case? The Court set aside the Uttarakhand High Court order directing data collection on the adequacy or inadequacy of representation of SC/ST candidates in the State’s services.
      • What was the reasoning? Its reasoning is that once there is a decision not to extend reservation — in this case, in promotions — to the section, the question whether its representation in the services is inadequate is irrelevant.

    Question of government obligation

    • The idea in consonance with the Constitution: The idea that reservation is not a right may be in consonance with the Constitution allowing it as an option.
    • The larger question of the government obligation: But a larger question looms is there no government obligation to continue with affirmative action if-
      • The social situation that keeps some sections backwards.
      • And at the receiving end of discrimination persists?

    Why reservation matters for equality?

    • Reservation as a faced of equality-the SC: Reservation is no more seen by the Supreme Court as an exception to the equality rule; rather, it is a facet of equality.
    • Completion of equality norm: The terms “proportionate equality” and “substantive equality” have been used to show that the equality norm acquires completion only when the marginalised are given a legal leg-up.

    What may be the consequences of this judgement?

    • Possibility of the unequal system: Some may even read into this an inescapable state obligation to extend reservation to those who need it, lest its absence renders the entire system unequal.
    • Possibility of perceptible imbalance: For instance, if no quotas are implemented and no study on backwardness and extent of representation is done, it may result in a perceptible imbalance in social representation in public services.

    Conclusion

    Ensuring adequate representation to disadvantaged sections is a state obligation and the state must play its role in ensuring their representation by appropriate legislation.

     

  • A mix Indian health care can do without

    Context

    In India, multiple policy pronouncements over the last few years have expressed an implicit intent to emulate certain features of the U.S. health system which is one of the most prodigal health systems, and it is a well-known reality that it is infamously poor-performing.

    Emulating the U.S. health system in India and problems in this approach

    • Implicit intent to emulate the U.S. system: In India, multiple policy pronouncements over the last few years have expressed an implicit intent to emulate certain features of the U.S. health system like-
      • Enhance private initiative.
      • And uphold the insurance route as the way to go for health care.
    • AB-NHPS scheme: These are being largely envisaged while riding on the back of the Ayushman Bharat-National Health Protection Scheme (AB-NHPS).
      • AB-NHPS aims to provide insurance cover to nearly 50 crores poor Indians.
      • The mechanism to check insurance frauds: The AB-NHPS affirmed strong mechanisms to check insurance fraud which was commonplace in its precursor programme, the Rashtriya Swasthya Bima Yojana (RSBY).
      • New of fraud in AB-NHPS: Recently, 171 hospitals were reported to have been de-empanelled from the AB-NHPS on charges of fraud.
    • How are the frauds in AB-NHPS sought to be tackled? The response to these has been envisaged through an unprecedented bolstering of administratively-heavy and technology-driven mechanisms.
      • Anti-fraud units: National- and state anti-fraud units have been established and partnerships with fraud control companies conceived.
      • One would ask this question: what is wrong in all of this?
    • What is wrong with this approach? Let us return to the U.S. once again.
      • Administrative intensive: Multiple layers of complex arrangements and concomitant complex regulatory provisions have made the U.S. system one of the most administratively and technologically intensive systems in the world.
      • 50% spending going for the wages: More than 50% of health-care spending in the U.S. in 2010 went into health worker’s wages, with a large chunk of the growth in health-care labour taking place in the form of non-clinical workers.
      • Very little going into improving health: What this entails is that for every penny spent on health care, very little goes into actually improving health.

    What are the concerns in emulating the U.S. system?

    • Sub-satisfactory operations at the large cost: The new system necessitates-
      • A battery of new structures.
      • Personnel cadres.
      • Data systems.
      • And working arrangements only in order to sub-satisfactorily operate an insurance scheme that would cover less than half the population.
      • Disregarding the death spiral that policy-driven over-reliance on private health care could lead to considerable costs which would not primarily contribute to improving health outcomes.
      • Ethical concerns over unnecessary spending: While a besottedness with cutting-edge technology and state-of-the-art systems can help garner eyes and promote businesses, each unnecessary penny incurred this way raises significant ethical concerns.
    • Problems of inadequate funding
      • Funding sufficient only for a quarter of beneficiary: Gupta and Roy have shown how the allocation for the AB-NHPS for 2019-20 would have covered less than a quarter of the targeted beneficiaries.
      • Paltry increase in allocations: For 2020-21, there has been a paltry increase in health-care sector allocation (5.7% above 2019-20 RE), while the allocation for the AB-NHPS is unchanged.
      • It is very possible that the AB-NHPS continues to remain insufficiently funded and incapable of extending considerable financial risk protection to the poor.
    • Diversion of limited funds to wasteful areas
      • Attractive on face: Embracing the complexities associated with robust regulation of the insurance programme and making the requisite technological and administrative investments appear attractive and commendable on the face.
      • Diversion of limited fund: However, these complexities entail diverting highly limited resources towards wasteful and dispensable high-end areas.
      • These funds could have been set aside for much more pressing and productive domains, such as public hospitals and health centres.
      • Improvements in these areas would have strongly reflected in terms of tangibly better health outcomes.
      • AB-NHPS reinforcing contradictions: Rather, the AB-NHPS appears attuned to reinforcing a stark contradiction wherein trailblazing but unproductive high-end structures thrive alongside decrepit but potentially fructuos basic structures.

    Conclusion

    The fanfare with which AB-NHPS was launched, can hide the pressing concerns which lie underneath. The government must ensure that every penny spent on improving healthcare is used in the most optimal way and ensure that India’s AB-NHPS won’t end up the US healthcare way.

  • The battle in Beijing

    Context

    The coronavirus epidemic poses a challenge to China’s place in global affairs, its political leadership.

    The possible implications of coronavirus crisis

    • The Chines leadership might not be able to escape the blame: If the epidemic turns into a pandemic, as some analysts bet, China’s all-powerful leader Xi Jinping might not be able to escape the blame.
      • And will likely come under considerable political pressure.
    • It could also turn into a systemic threat: Some also speculate that the backlash against the government’s mishandling of the crisis could turn into a systemic threat against the dominance of the Chinese Communist Party.
    • Speculations as perennial hope among China’s critics: Sceptics, however, dismiss above speculation as merely reflecting the perennial hope among Beijing’s harshest critics who can’t wait to see a China without the CCP.
      • Realist’s stand: Realists point to the massive mobilisation of state power by President Xi in limiting the spread of the virus.

    Handling of the crisis by China

    • Initial faltering response: To be sure, there were major failures in the initial faltering response to the crisis.
      • Cover-up attempts from the lower level: The attempts at the lower levels to cover-up or underplays the crisis and the inadequate appreciation at the higher levels of the potential consequences are common to all large bureaucracies. The party-state in China is not an exception.
    • Praise for handling the crisis: China’s handling of the crisis had drawn much respect, grudging or otherwise, from the international community.
      • Whether it is the lockdown of Hubei province and its capital Wuhan, from where the virus began to spread.
      • Or in deploying thousands of doctors and health workers in the province and building massive hospitals for treating the infected.
    • Possibility of some political impact: Yet, there is no question that a crisis of this magnitude -will have some political impact.
      • The party-state is certainly having some difficulty in containing the public outrage against the initial failures.
    • Efforts to shield top leadership from blame: The CCP, however, is bound to shield the supreme leader from any damaging criticism and in fact, celebrate a triumph in containing the spread through a determined effort.
      • Responsibility will be affixed on provincial officials in Hubei and a purge of some kind may have already begun.

    Addressing the economic consequences of the crisis

    • International dimension: Nearly two decades after the SARS epidemic -China is now a much larger economy and its interdependence with the world has only deepened.
      • This interdependence, in turn, lends a strong international dimension to China’s crisis.
    • Optimist’s hope of future uptick: Optimists hope that a sharp drop in economic activity in the current quarter will be followed by a steep uptick in growth in the next when the virus is contained and normalcy returns.
    • Pessimist’s fear of economic disruption: Pessimists suggest that the economic disruption — in terms of the impact on internal and external trade and the breakdown of the global supply chains- could have lasting effects.
      • Reinforcing the disruption: Some suspect that the disruption could reinforce the slowdown driven by a number of other internal and external factors including the trade war with the US.

    China’s response to the rest of the world

    • Channelling of resentment against the West: Some in the West hope that a prolonged economic crisis might turn the people against the CCP. For now, though, Beijing is channelling the resentment against the West.
    • Terming evacuation as an over-reaction: Beijing has criticised the advisories from various countries against travel to China and the cancellation of flights as over-reaction.
      • Lukewarm response to evacuation efforts: China has also been lukewarm to efforts of various countries to evacuate their citizens from Wuhan and Hubei.
      • India evacuated students: India has managed to convince Beijing to let India airlift its students from Wuhan.
      • Pakistan has declared that it will not evacuate its students as a gesture of political solidarity with China in a time of crisis.
      • South Asian neighbour’s response: Many of India’s other South Asian neighbours are torn between the reluctance to offend Chinese sentiment and the mounting domestic pressures to bring students back.
      • Cooperation with the US: While being critical of the US travel restrictions against China, Beijing has certainly been open to cooperation with the US in dealing with the crisis.
    • India’s offer to help other countries in evacuation: The external affairs minister Subrahmanyam Jaishankar said last week that India has been willing to bring back students from all the neighbouring countries.
      • Balancing between Delhi and Beijing: The logic of balancing between Delhi and Beijing has prevented most of the smaller neighbours from requesting Indian assistance.
      • The Maldives has been the only exception.
    • The response of the East and Southeast Asia: Beyond South Asia, many countries in East and Southeast Asia have been hesitant to be seen as rushing to cut themselves from China.
      • What is making these countries hesitant: Deep economic interdependence and massive flows of Chinese tourists led to much dithering among the East Asian countries in their early responses to the crisis.

    Conclusion

    India must explore all potential cooperative engagement with Beijing as well as its other international partners on pandemics-an important but the under-addressed challenge for national, regional and international security.

  • Explained: Uniform Civil Code — the debate, the status

    Last week, while hearing a matter relating to properties of a Goan, the Supreme Court described Goa as a “shining example” with a Uniform Civil Code, observed that the founders of the Constitution had “hoped and expected” a UCC for India but there has been no attempt at framing one.

    What is a Uniform Civil Code?

    • A UCC is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
    • Article 44 of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
    • Article 44 is one of the directive principles. These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.
    • Fundamental rights are enforceable in a court of law. While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
    • Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
    • All this implies that the duty of the state is greater in other directive principles than in Article 44.

    What are more important — fundamental rights or directive principles?

    • There is no doubt that fundamental rights are more important.
    • The Supreme Court held in Minerva Mills (1980): “Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
    • To give absolute primacy to one over the other is to disturb the harmony of the Constitution”.
    • Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the fundamental rights under Articles 14 and 19.

    Does India not already have a uniform code in civil matters?

    • Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
    • States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
    • Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.
    • If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
    • But “personal laws” are mentioned in the Concurrent List. Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

    Is there one common personal law for any religious community governing all its members?

    • All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
    • Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
    • In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
    • The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.
    • Muslims of Kashmir were thus governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
    • Even on registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
    • In the Northeast, there are more than 200 tribes with their own varied customary laws.
    • The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram. Even reformed Hindu law, in spite of codification, protects customary practices.

    How does the idea of a UCC relate to the fundamental right to religion?

    • Article 25 lays down an individual’s fundamental right to religion; Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”; Article 29 defines the right to conserve distinctive culture.
    • An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to fundamental rights, but a group’s freedom under Article 26 has not been subjected to other fundamental rights
    • In the Constituent Assembly, there was division on the issue of putting Uniform Civil Code in the fundamental rights chapter.
    • The matter was settled by a vote. By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of fundamental rights and therefore the UCC was made less important than freedom of religion.

    What was the view of Muslim members in the Constituent Assembly?

    • Some members sought to immunise Muslim Personal Law from state regulation.
    • Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
    • B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
    • Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
    • B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
    • Alladi Krishnaswami, who was in favour of a Uniform Civil Code, conceded that it would be unwise to enact Uniform Civil Code ignoring strong opposition from any community.
    • Gender justice was not mentioned in these debates.

    How did the debate on a common code for Hindus play out?

    • In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Jawaharlal Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
    • Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
    • When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it.
    • On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it.
    • Ambedkar eventually had to resign. Nehru agreed to trifurcation of the Code into separate Acts and diluted several provisions.

  • Fine-tuning the Surrogacy Bill

    Context

    • In a recent report, a Select Committee of Parliament has recommended that the contentious clause limiting surrogacy only to “close relatives” to be removed from the Surrogacy (Regulation) Bill, 2019.
    • These recommendations aim to make the benefits of modern technology more easily available to infertile couples.
    • A look at the genesis of the Bill, its provisions and why the current report could signal some progressive amendments in the Bill:

    What are the provisions of the Surrogacy (Regulation) Bill?

    • The Surrogacy Bill proposes to allow altruistic ethical surrogacy to intend infertile Indian married couples in the age groups 23-50 years (women) and 26-55 years (men).
    • It was first mooted in 2016 in the wake of repeated reports of exploitation of women who were confined to hostels, not provided adequate post-pregnancy medical care and paid a pittance.
    • The couple should have been legally married for at least five years and should be Indian citizens.
    • They cannot have a surviving child, either biological or adopted, except when they have a child who is mentally or physically challenged or suffers from a life-threatening disorder with no permanent cure.
    • It requires surrogacy clinics to be registered, and national and state surrogacy boards to be formed.
    • It makes commercial surrogacy, and abandoning or disowning a surrogate child punishable by imprisonment up to 10 years and a fine up to Rs 10 lakh.

    What changes has the Select Committee suggested?

    • The Select Committee recommended that the “close relatives” clause should be removed, and any “willing” woman should be allowed to become a surrogate mothe.
    • It has strongly backed the ban on commercial surrogacy.
    • It has also recommended that divorced and widowed women aged between 35 and 45 years should be able to be a single commissioning parent.
    • It has emphasised the need for a five-year waiting period for childless married couples could be waived if there is a medical certificate that shows that they cannot possibly conceive.
    • It has recommended that persons of Indian origin should be allowed to avail surrogacy services.
    • It has not, however, recommended expanding the definition of commissioning parent to include singles, either men or women.
    • It also recommended that the ART Bill (which deals with assisted reproductive technologies) should be brought before the Surrogacy bill so that all the highly technical and medical aspects could be properly addressed.

    What is the ART Bill?

    • The Assisted Reproductive Technology (Regulation) Bill has been in the making since 2008.
    • It aims to regulate the field through registration of all IVF clinics and sperm banks, segregation of ART clinics and gamete banks etc.
    • It also requires national and state boards to be established for the purpose of regulation of the fertility market.
    • The Select Committee report says: “Surrogacy is a part and parcel of ART and hence the Surrogacy Bill should come into force only after the enactment of ART Bill.
    • Bringing Surrogacy Bill before the ART will be irrelevant and also create duplication of Boards.
    • The Standing Committee on Health and Family Welfare, too has “strongly recommended” to the government that the two Bills should be brought together and not in isolation.

    How big is India’s surrogacy market?

    • Estimations by the ICMR put it around 2,000-odd babies per year through commercial surrogacy — when a woman is paid an agreed sum for renting her womb.
    • CII figures say surrogacy is a $2.3-billion industry fed by a lack of regulations and poverty.

    What happened the last time the Bill was scrutinized by a parliamentary panel?

    • The Bill was earlier scrutinized by the Parliamentary Standing Committee on Health and Family Welfare.
    • That committee had recommended that compensation should be the norm and the word “altruistic” should be replaced with “compensated”.
    • Couples — including those in live-in relationships — should be allowed to choose surrogates from both within and outside the family. Altruistic surrogacy, it observed, is tantamount to exploitation.
    • The “close relative” condition is open to misuse in a patriarchal setup, the committee had observed.
    • Given the patriarchal familial structure and power equations within families, not every member of a family has the ability to resist a demand that she be a surrogate for another family member.
    • A close relative of the intending couple may be forced to become a surrogate which might become even more exploitative than commercial surrogacy.
    • These recommendations were not accepted by the government.

  • Seeking a more progressive abortion law

    Context

    The Medical Termination of Pregnancy Bill doesn’t do enough to secure women’s choices and interests.

    Deaths due to unsafe abortion and previous attempts to legislate

    • Deaths due to unsafe abortions: Recent reports have shown that more than 10 women die every day due to unsafe abortions in India.
      • And backward abortion laws only contribute to women seeking illegal and unsafe options.
    • The Cabinet has recently approved the Medical Termination of Pregnancy (Amendment) Bill, 2020 (MTP Bill, 2020) which will soon be tabled in Parliament.
      • It seeks to amend the Medical Termination of Pregnancy Act, 1971 (MTP Act) and follows the MTP Bills of 2014, 2017 and 2018, all of which previously lapsed in Parliament.

    Provisions of the current law

    • Foetus-age based division: The MTP Act divides its regulatory framework for allowing abortions into categories, according to the gestational age of the foetus.
      • Up to 12 weeks: Under Section 3, for foetuses that are aged up to 12 weeks-
      • Only one medical practitioner’s opinion is required to the effect that the continuance of the pregnancy would pose a risk to the life of the mother or cause grave injury to her physical or mental health.
      • Or there is a substantial risk that if the child is born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
      • Between 12 weeks and 20 weeks: But if the foetus is aged between 12 weeks and 20 weeks-
      • At least two medical practitioners’ opinions conforming to either of the two conditions are required.
      • What beyond 20 weeks? Beyond 20 weeks, termination may be carried out where it is necessary to save the life of the pregnant woman.
    • Definition of grave injury: The MTP Act also specifies that ‘grave injury’ may be explained as
      • The anguish caused by a pregnancy arising out of rape, or the anguish caused by an unwanted pregnancy arising out of the failure of a contraceptive used by a married woman or her husband.

    What are the issues with the current law?

    • Several issues arise from the current framework under the MTP Act.
    • First-Lac of autonomy of women: At all stages of the pregnancy, the healthcare providers, rather than the women seeking an abortion, have the final say on whether the abortion can be carried out.
      • It is true that factors such as failure of contraceptives or grave injury are not required to be proved under the MTP Act.
      • However, to get the pregnancy terminated solely based on her will, the woman may be compelled to lie or plead with the doctor.
      • Thus, at present, pregnant women lack autonomy in making the decision to terminate their pregnancy and have to bear additional mental stress, as well as the financial burden of getting a doctor’s approval.
      • On request abortion in 67 countries: Indian’s law is unlike the abortion laws in 67 countries, including Iceland, France, Canada, South Africa and Uruguay, where a woman can get an abortion ‘on request’ with or without a specific gestational limit (which is usually 12 weeks).
    • Second-Prejudice against unmarried women: The MTP Act embodies a clear prejudice against unmarried women.
      • According to ‘Explanation 2’ provided under Section 3(2) of the Act, where a pregnancy occurs due to failure of any birth control device or method used by any “married woman or her husband”, the anguish caused is presumed to constitute a “grave injury” to the mental health of the pregnant woman.
      • While the applicability of this provision to unmarried women is contested, there is always the danger of a more restrictive interpretation, especially when the final decision rests with the doctor and not the woman herself.
    • Third-Restriction of 20 weeks’ limit: Due to advancements in science, foetal abnormalities can now be detected even after 20 weeks.
      • Danger to mother’s life only condition after 20 weeks: The MTP Act presently allows abortion post 20 weeks only where it is necessary to save the life of the mother.
      • Problem with this restriction: The above restriction means that even if a substantial foetal abnormality is detected and the mother doesn’t want to bear life-long caregiving responsibilities and the mental agony associated with it, the law gives her no recourse unless there is a prospect of her death.

    What does the bill fail to address?

    • While the MTP Bill, 2020, is a step in the right direction, it still fails to address most of the problems with the MTP
    • First, it doesn’t allow abortion on request at any point after the pregnancy.
    • Second, it doesn’t take a step towards removing the prejudice against unmarried women by amending the relevant provision.
    • And finally, it enhances the gestational limit for legal abortion from 20 to 24 weeks only for specific categories of women such as survivors of rape, victims of incest, and minors.
      • This means that a woman who does not fall into these categories would not be able to seek an abortion beyond 20 weeks, even if she suffers from a grave physical or mental injury due to the pregnancy.

    What are the provisions for the case of foetal abnormality in the bill?

    • Limit irrelevant if the foetal abnormality is diagnosed by the Medical Board: The Bill does make the upper gestational limit irrelevant in procuring an abortion if there are substantial foetal abnormalities diagnosed by the Medical Board.
      • This means that even if there is no threat to the mother’s life, she would be able to procure an abortion as soon as a substantial foetal abnormality comes to light.
      • While this is an important step and would have in the past helped many women who fought long battles in Court without recourse.
      • Rules against unnecessary delays: It is crucial that this provision is accompanied by appropriate rules for the Medical Boards that guard against unnecessary delays, which only increase the risks associated with a late abortion.

    Conclusion

    • Recognition of women’s right: The Supreme Court has recognised women’s right to make reproductive choices and their decision to abort as a dimension of their personal liberty (in  X v. Union of India,2017) and as falling within the realm of the fundamental right to privacy (in K.S. Puttaswamy v. Union of India, 2017). Yet, current abortion laws fail to allow the exercise of this right.
    • The bill does not do enough: While it is hoped that MTP Bill, 2020 will not lapse in Parliament like its predecessors, it is evident that it does not do enough to secure women’s interests, and there is still a long road ahead for progressive abortion laws.

     

     

     

  • Victim justice is two steps forward, one step back

    Context

    The recent judgment in Rekha Murarka vs The State Of West Bengal, the SC has held that the victims’ private counsel cannot orally examine or cross-examine the witnesses.

    Place of the victim in the present criminal justice system

    • Removed from the proceedings: Under our criminal justice system, victims find themselves removed from the proceedings.
      • Their identities are reduced to being mere witnesses.
      • The harm they suffer is reduced to being aggravating or mitigating factors at the time of sentencing.
      • Stage props in a larger scheme: With the state appropriating their victimisation, the actual victims become mere stage props in a larger scheme.
    • Need of The victim-centric notion of justice-Law Commission suggestion: In 1996, the 154th Law Commission Report suggested a paradigm shift in India’s criminal justice system towards a victim-centric notion of justice.
      • Partial acceptance: The Code of Criminal Procedure (Amendment) Act, 2009 partially accepted the Law Commission suggestion and granted some rights to the victims of crime.
      • The Act introduced victims’ right to a private counsel under Section 24(8).
      • Move toward victim’s participation: The Code of Criminal Procedure already allowed for pleaders engaged by private persons to submit written arguments with the permission of the court under Sections 301(2) and 302 allowed a person to conduct the prosecution with permission of the court.
      • These sections were read together to partially secure the victims’ right to participation.

    Steps take  towards securing justice for victims

    • Right to legal assistance to victims of sexual assault: In the case of Delhi Domestic Working Women’s Forum v. Union of India (1994), the SC called for the extension of the right to legal assistance to victims of sexual assault at the pre-trial stages.
    • The SC opinion over asymmetry in rights of victims and the accused: In Mallikarjun Kodagali (Dead) … vs The State Of Karnataka (2018), the Court accepted that under the criminal justice system, the rights of the accused far outweigh the rights of the victim.
    • Introduction of victim impact statement right to appeal against the adverse order: The Supreme Court not only called for the introduction of a victim impact statement in order to guarantee the participation of the victim in the trial proceedings.
      • The SC also reinstated the victims’ right to appeal against an adverse order.

    Provisions on the international level for the victim’s participation

    • Despite these advances, the scheme of victim participation remains far removed from the ideals embedded in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; India is a signatory.
      • What does the declaration require? It requires that the views and concerns of victims should be allowed and considered at all appropriate stages without prejudice to the accused.
    • Need to increase the victims’ advocate’s role: Presently, the victims’ advocate has an extremely limited role to play wherein he “assists” the prosecutor rather than represent the interests of the victim before the court.
      • The only substantial opportunity provided to a private counsel is after the closing of evidence when written arguments may be submitted to the court only after seeking the permission of the court.
    • Contrast with ICC: In contrast, the International Criminal Court (ICC) provides for victim participation at the stage of-
      • First, a challenge to the jurisdiction of the ICC.
      • Second, framing of charges.
      • Third, opening and closing statements.
      • Fourth, making a written submission wherever the personal interests of the victims are affected.
      • And finally, for presenting witnesses to give evidence on issues relating to the personal interests of the victims.

    What the SC judgement means

    • Missed opportunity: The Supreme Court in Rekha Murarkahas missed the opportunity to forward the jurisprudence on victim justice and rectify the lacunae in our laws.
      • Instead, the judgment goes against the jurisprudential current specified above.
      • Indeed, the victim’s right to participation cannot be secured by restricting the rights of the accused.
    • Why the victim’s advocate is not allowed the right to participate in the SC’s opinion: According to the judgment, a victim’s advocate cannot be allowed the right to participate because-
      • First- Insistence by the victim’s counsel to examine a witness deliberately left out by the prosecution may weaken the prosecution’s case;
      • Second– The trial will derogate into a “vindictive battle” between the victim’s counsel and the accused.
      • Third- A lack of experience on the part of the victim’s counsel may lead to lapses.
    • The problem in the SC ruling: The judgment further assumes that prosecutions effectively take the victim’s needs into account.
      • SC ignored why the need for private counsel arise: The judgement ignores the fact that the need for a private counsel arises precisely because intentional or unintentional prosecutorial lapses directly lead to injustice to the victims.
      • The court expects the victim’s counsel to make the prosecutor aware of any aspects that have not been addressed in the examination of witnesses or the arguments advanced by the public prosecutor.
      • In the process, it assumes that the prosecutor will address such lapses.

    Conclusion

    Under the role currently envisaged in our criminal justice system, the public prosecutor cannot sufficiently take into account the interests, needs and requirements of the victims. The cause of victim justice would be greatly served if the Supreme Court decided to revisit its reasoning and assumptions to appropriately amend this provision in light of the above.

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