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GS Paper: GS2

  • [op-ed of the day] Human rights are not solely an ‘internal matter’

    Context

    The human rights situation in Jammu and Kashmir following the dilution of Article 370 and the passage of the Citizenship (Amendment) Act (CAA) have brought renewed international focus on India’s human rights practice.

    Evolution of the modern Human Rights

    • Classical approach: Countries made agreements on the premise that a sovereign state had the exclusive right to take any action it thought fit to deal with its nationals.
      • No recognition of individuals’ rights:  Classic international law governed the conduct between states and did not recognise the rights of individuals.
    • The classical notion was challenged in the 19th century.
    • Modern Human Rights:  Slavery Convention adopted by the League of Nations prohibiting the slave trade heralded the first human rights treaty.
      • It was based on the principle of dignity of a human being.
    • The Universal Declaration of Human Rights: Adopted in 1948 by the United Nations, was the first comprehensive international human rights document.
    • The weakening of Unrestricted sovereignty: The evolution of international human rights law is also about the gradual weakening of the concept of unrestricted sovereignty.

    India and Human Rights

    • Unwarranted international scrutiny: The Indian government’s response to its human rights practice has always been that international scrutiny is unwarranted.
      • Why India claims so?: Since the country is the largest democracy in the world with an independent judiciary, free media, and an active civil society no international scrutiny is required.
      • Indian has always assured the international community that the judiciary (the SC) would provide adequate remedies to victims of human rights violations.
      • These claims sound less credible after the recent developments in J&K and the passage of the CAA.
    • Human rights and Discriminatory nature of CAA: Non–discrimination is a fundamental principle of human rights.
      • The Office of the High Commissioner for Human Rights (OHCHR) said that CAA is fundamentally discriminatory in nature”.

    Role of Civil Society and Media

    • Media’s questionable role: Responding to international concerns the Indian government also refers to the role of free media and civil society in protecting human rights.
      • However, the media’s role in J and K and after CAA is questionable.
    • Weakened Civil Society: The government has imposed various curbs on it since 2014.
      • It has become difficult for it to receive foreign contribution.
      • Use of FRCA: Since 2014, the government has canceled the registration of about 14,000 NGOs under the Foreign Contribution Regulation Act (FCRA).

    Conclusion

    • It is possible for the Indian government, due to its diplomatic clout, to avoid robust intervention by the UN Human Rights Council and other UN human rights mechanisms.
    • But it would be difficult to avoid scrutiny by the international community. So, the government must take steps to allay international concerns and avoid situations where it is seen as a violator of human rights.

  • [op-ed snap] Taking a holistic approach to dengue

    Context

    The advent of a new tetravalent vaccine against the dengue virus has thrown new light into the evidence-based management of dengue.

    Why the holistic approach is needed

    • Apart from promoting the use of the vaccine, gaining control over dengue will also require a holistic approach that has to include within its ambit vector control and proper case management.
    • Tetravalent vaccine: The vaccine is tetravalent i.e. it provides protection against all the four types of dengue viruses.
      • The vaccine confers about 80% protection to children vaccinated between 4 and 16 years of age without any major side effects.
    • Climatic factors: It is essentially a tropical disease that occurs in the countries around the Equator; hot weather and intermittent rainfall favour the sustenance of Aedes aegypti.
      • Aedes eggs can remain dormant for more than a year and will hatch once they come in contact with water.
    • Risk factors: Urbanisation, poor town planning, and improper sanitation are the major risk factors for the multiplication of such mosquitoes.
      • Aedes eggs can remain dormant for more than a year and will hatch once they come in contact with water.
      • Aedes mosquitoes cannot fly beyond a hundred meters. Hence, keeping the ambiance clean can help prevent their breeding.
      • Further, these mosquitoes bite during the daytime, so keeping the windows shut in the day hours is also useful.

    What needs to be done?

    • Source reduction activities: Activities like preventing water stagnation and using chemical larvicides and adulticides.
      • These chemicals need to be applied in periodic cycles to kill the larvae that remain even after the first spray.
    • Dealing with the manpower shortage: The number of skilled workers available for such measures is low; many posts in government departments remain vacant despite there being a dire public health need.
      • Due to this deficiency of manpower, active surveillance is not being done in India, says the National Vector Borne Disease Control Program.
    • Ending the Under-reporting: Dengue cases are often under-reported due to political reasons and also to avoid spreading panic among the common people. Under-reporting needs to be dealt with.
    • Increasing coordination: There is a lack of coordination between the local bodies and health departments in the delivery of public health measures.
      • A comprehensive mechanism is required to address these issues.
    • Need for epidemiological measures: Any communicable disease needs the epidemiological approach. Singapore uses one successful model of mapping and analysing data on dengue, using Geographical Information System (GIS).
      • The use of GIS involves mapping the streets with dengue cases for vector densities.
    • Emphasis on the WHO guidelines: Fluid management in the body is the cornerstone in the management of severe diseases like dengue hemorrhagic fever and dengue shock syndrome.
      • According to the guidelines, coagulation abnormalities are not due to a reduction in the number of platelets alone.
      • This is why the WHO recommends fresh whole blood or packed cell transfusion in the event of bleeding.
    • Caution in using alternative medicine drugs: Modern medicine is not against any complementary medicine; when such a medicine is approved after rigorous testing.
      • However, in the absence of evidence, the efficacy of such medicines remains in the realm of belief instead of science.
      • So, medicines like Nilavembu kudineer and papaya leaf extract are only belief based.

    Conclusion

    The communicable nature of Dengue and its asymptomatic nature requires the holistic approach to successfully tackle the disease.

     

  • [op-ed snap] Eloquently reticent: On validity of J&K curbs

    Context

    The SC verdict on the restrictions has some important takeaways.

    What the SC verdict means

    • Infinite ban on internet impermissible:  It states categorically that an indefinite ban on the internet is impermissible, but fails to direct the restoration of services. 
    • Section 144 and legitimate expression of opinion: The SC said that Section 144 of the Code of Criminal Procedure “cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights”.
    • No ruling on the Govt. actions: The disappointing aspect of the verdict is the court’s failure to give a ruling on the validity of the government’s actions.
      • The ruling fails to hold the government to account for the manner in which it exercised its powers.
      • It states categorically that an indefinite ban on the internet is impermissible, but fails to direct the restoration of services.
      • The SC does not go beyond directing the authorities to review all their orders and restrictions forthwith.

    The key takeaways from the verdict

    • Internet use constitutionally protected: The use of the Internet as a medium for free speech as well as for trade and commerce is constitutionally protected.
    • Test of proportionality: It also lays down that any reasonable restriction on fundamental rights, be it an Internet ban or a Section 144 order, will have to survive the test of proportionality.
      • The proportionality test means that is, the restriction should be proportionate to the necessity for such a measure.
      • At the same time, it cautions against the “excessive utility” of the proportionality doctrine in matters of national security.
    • No secret orders: The government is bound to publish all orders it passes regarding such restrictions so that they can be challenged in a court of law.
      • While the government’s stand that it could not produce all the orders on the restrictions imposed the SC did not strike them down on that ground.

    Conclusion

    The SC judgment, while laying down some important principles in a fundamental rights case, appears to have the character of an advisory opinion.

     

     

  • SC underlines restrictions on use of Sec 144

    In its order on Jammu and Kashmir the Supreme Court made the following points with regard to the use of Section 144 of the Code of Criminal Procedure (CrPC), 1973.

    Key takeaways of the order

    • Sec 144 cannot be used to suppress the legitimate expression of opinion or grievance, or the exercise of democratic rights
    • When Sec 144 is imposed for reasons of apprehended danger, that danger must be an “emergency”.
    • The imposition of Sec 144 must strike a balance between the rights of the individual and the concerns of the state.
    • Powers under Sec 144 should be exercised in a reasonable and bona fide manner, and the order must state material facts in order to enable judicial review.

    What is Section 144?

    • Section 144 CrPC, a law retained from the colonial era, empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate specially empowered by the state government in this behalf to issue orders to prevent and address urgent cases of apprehended danger or nuisance.
    • The magistrate has to pass a written order which may be directed against a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
    • In emergency cases, the magistrate can pass these orders without prior notice to the individual against whom the order is directed.

    What powers does the administration have under the provision?

    • The magistrate can direct any person to abstain from a certain act or to take a certain order with respect to certain property in his possession or under his management.
    • This usually includes restrictions on movement, carrying arms and from assembling unlawfully. It is generally believed that assembly of three or more people is prohibited under Section 144.
    • However, it can be used to restrict even a single individual. Such an order is passed when the magistrate considers that it is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.
    • However, no order passed under Section 144 can remain in force for more than two months from the date of the order, unless the state government considers it necessary.
    • Even then, the total period cannot extend to more than six months.

    Why is it criticised so often?

    • The criticism is that it is too broad and the words of the section are wide enough to give absolute power to a magistrate that may be exercised unjustifiably.
    • The immediate remedy against such an order is a revision application to the magistrate himself.
    • An aggrieved individual can approach the High Court by filing a writ petition if his fundamental rights are at stake.
    • However, fears exist that before the High Court intervenes, the rights could already have been infringed.

    Also read: 

    https://www.civilsdaily.com/news/explained-how-section-144-crpc-works/

  • SC order on Internet Shutdowns

    Directing the government to mandatorily publish all orders permitting Internet shutdowns, the Supreme Court has for the first time set the stage for challenging suspension orders before courts.

    What triggered the SC?

    • India tops the list of Internet shutdowns globally. According to Software Freedom Law Center’s tracker, there have been 381 shutdowns since 2012, 106 of which were in 2019.
    • The ongoing shutdown in Kashmir is the longest ever in any democratic country.

    The prime mover for Supreme Court

    • The Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 issued under the Telegraph Act deals with restricting Internet access.
    • It does not provide for publication or notification of the order suspending Internet, the apex court mandated that such orders must be made available to the public.
    • The court declared that it is a “settled principle of law, and of natural justice” that requires publication of such orders, “particularly one that affects lives, liberty and property of people”.
    • This allows individuals to now challenge the orders before courts in J&K and rest of India.

    Internet suspension orders are subjected to Judicial Review

    • In the wake of protests against the new citizenship law, Internet services were suspended temporarily in parts of Uttar Pradesh, Delhi and Karnataka.
    • There should not be excessive burden on free speech even if complete prohibition is imposed, and the government has to justify imposition of such prohibition and explain why lesser alternatives were inadequate, the bench stated.
    • It ruled that Restrictions are to be imposed in an emergency. Hence they must be proportionate to the concern. Their objective must be legitimate rather than cavalier.
    • Authorities must necessarily consider an alternative and least restrictive mechanism before opting to restrict rights. Every decision to impose restriction should be backed by sufficient material and amenable to judicial review.

    Pacing up with technology

    • The bench also noted that the law needs to keep pace with technological development:
    • We need to note that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society.
    • Non-recognition of technology within the sphere of law is only a disservice to the inevitable.

    Justifying the Kashmir shutdown

    • Lastly, the court mandated that all orders regarding the Kashmir case be made public, and to provide essential services such as e-banking and hospitals immediately.
    • What the centre was arguing in this case was that this is a matter of national security given that it pertains to Kashmir with a history of militancy.

  • In news: Dept. of Military Affairs’

    The Ministry of Defence (MoD) has approved the Rules of Business for the newly created Department of Military Affairs (DMA) headed by the Chief of Defence Staff (CDS).

    Department of Military Affairs (DMA)

    • The DMA headed by Gen Bipin Rawat will have two Joint Secretaries, 13 Deputy Secretaries, 25 Under Secretaries and 22 Section officers.
    • The training policy, most of the training establishments and cadre management of the Services will be under the purview of the DMA.
    • Defence diplomacy of the neighbourhood countries would also be under the CDS.
    • Similarly, deputations to the training establishments such as the National Defence Academy (NDA), the Indian Military Academy (IMA), the Officers Training Academy (OTA) and the Defence Services Staff College (DSSC) would also be under the CDS.
    • Cadre review of Junior Commissioned Officers (JCO) and Other Ranks (OR) will be looked after by the CDS.

    Other facts

    • On December 30, the government notified the DMA creation, with the CDS also as a Secretary in the MoD.
    • The DMA is the fifth department in the MoD, the others being the Department of Defence, the Department of Defence Production, the Department of Defence Research and Development and the Department of Ex-Servicemen Welfare.
    • The Services have been brought under the ambit of the DMA in addition to the Territorial Army and works relating to the three Services and procurement exclusive to the Services except capital acquisitions.
    • Defence imports and procurements would be under the the Department of Defence headed by the Defence Secretary.

  • [op-ed snap] Eloquently reticent: On validity of J&K curbs

    Context

    The SC verdict on the restrictions has some important takeaways.

    What the SC verdict means

    • Infinite ban on internet impermissible:  It states categorically that an indefinite ban on the internet is impermissible, but fails to direct the restoration of services. 
    • Section 144 and legitimate expression of opinion: The SC said that Section 144 of the Code of Criminal Procedure “cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights”.
    • No ruling on the Govt. actions: The SC stops short of ruling on the validity of the government’s actions.
      • The ruling fails to hold the government to account for the manner in which it exercised its powers.
      • It states categorically that an indefinite ban on the internet is impermissible, but fails to direct the restoration of services.
      • The SC does not go beyond directing the authorities to review all their orders and restrictions forthwith.

    The key takeaways from the verdict

    • Internet use constitutionally protected: The use of the Internet as a medium for free speech as well as for trade and commerce is constitutionally protected.
    • Test of proportionality: It also lays down that any reasonable restriction on fundamental rights, be it an Internet ban or a Section 144 order, will have to survive the test of proportionality.
      • The proportionality test means that is, the restriction should be proportionate to the necessity for such a measure.
      • At the same time, it cautions against the “excessive utility” of the proportionality doctrine in matters of national security.
    • No secret orders: The government is bound to publish all orders it passes regarding such restrictions so that they can be challenged in a court of law.
      • While the government’s stand that it could not produce all the orders on the restrictions imposed the SC did not strike them down on that ground.

    Conclusion

    The SC judgment, while laying down some important principles in a fundamental rights case, appears to have the character of an advisory opinion.

  • Curative Petition

    Curative petitions were filed in the Supreme Court by two convicts in the Nirbhaya case after their execution was scheduled.  The case had shocked the nation and led to the tightening of anti-rape laws. Rape, especially gang rape, is now a capital crime.

    Background

    • The concept of Curative petition was evolved by the Supreme Court of India in the matter of Rupa Ashok Hurra vs. Ashok Hurra and Anr. (2002) Judgement.
    • The question was whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition.
    • The Supreme Court in the said case held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgements in exercise of its inherent powers.

    Curative Petition

    • For this purpose, the court has devised what has been termed as a “curative” petition.
    • In the Curative petition, the petitioner is required to aver specifically that the grounds mentioned therein had been taken in the review petition filed earlier and that it was dismissed by circulation.
    • This has to be certified by a senior advocate. The Curative petition is then circulated to the three senior most judges and the judges who delivered the impugned judgement, if available.
    • No time limit is given for filing Curative petition. It is guaranteed under Article 137 of Constitution of India i.e. powers of the Supreme Court to review of its own judgements and orders.

    Review Petition

    • Article 137 of the Constitution provides that subject to provisions of any law and rule made under Article 145 the Supreme Court of India has the power to review any judgement pronounced (or order made) by it.
    • Thus binding decision of the Supreme Court/High Court can be reviewed in Review Petition.
    • The parties aggrieved on any order of the Supreme Court on any apparent error can file a review petition.
    • Taking into consideration the principle of stare decisis courts generally do not unsettle a decision, without a strong case. This provision regarding review is an exemption to the legal principle of stare decisis.
    • Under Supreme Court Rules, 1966 such a petition needs to be filed within 30 days from the date of judgement or order.
    • It is also recommended that the petition should be circulated without oral arguments to the same bench of judges that delivered the judgement (or order) sought to be reviewed.

  • [op-ed snap] A multilateral alternative, by Asia

    Context

    After the gap of 200 years, Asian economies are once again larger than the rest of the world combined.

    The Asian Century

    • Providing an alternative order: With the rise of India and China, Asia is providing a multilateral alternative to the world base on values.
    • Asian Century corresponds to the re-emergence of the two countries, leveraging the size and technological competence
    • Civilizational values: Both countries have civilisational values that are different from the west.
    • Peaceful existence: In the case of India and China balance of power is a western construct and both lived in peace across the ages.
    • The rise of China on the global landscape: In 2013, after attaining 15% of global wealth, announced the multilateral Belt and Road Initiative (BRI). In 2014, launched the Asian Infrastructure Investment Bank, challenging the global governance paradigm.
    • India in 2015, established the International Solar Alliance, laying out a distinct global sustainable development framework.
    • Current multilateralism and its problems: The U.S. has recognised the ‘Asian Century’ bypassing multilateralism and recognised Indo-Pacific construct.
    • The U.S. withdrawal from the Paris Agreement and the inclusion of intellectual property rights into the trade regime point to the colonial origin of the present order.

     

    New Framework- Country-specific to global value chain

    • Changing competition: Competition is moving from country-specific to fragmented competition based on global value chains.
    • Imposing the U.S. determined national security standards has led to only a handful of countries agreeing to ban Huawei for 5G technology.
    • The U.S. imposed sanctions on Iran that have affected India’s interests.
    • A different approach of China: It is based on “common interests” as different from the agreed goals of a negotiated treaty. BRI is an example of this.
    • It optimise not maximise the financial returns with countries remaining out of it.
    • The BRI offers the benefit of integration and connectivity with European markets to the member countries.

    Potential of BRI

    • It acts as a strategic framework: It provides a strategic framework for new global institution building.
    • Its scope is as wide as multilateral treaties.
    • Internationalizing the Renminbi: With state-owned enterprises in the infrastructure sector in the sector in BRI and backing from national banks is internationalising the Renminbi.
    • Developing blockchain bases infrastructure: As a leader in digital transactions, China is developing blockchain-based infrastructure in BRI countries. Thus reducing the dependence on the dollar.

    The shared interest of India and China

    • RCEP: China and the rest of the countries are eager that India joins the Regional Comprehensive Economic Partnership (RCEP), which is poised to become the largest trading block.
    • Security and border dispute: With the U.S. pivot to Asia, China is eager to resolve the dispute with India to avoid constraints.
    • Huawei: India has rejected American opposition to Huawei taking part in 5G trials, India allowed all applicants to participate.

        The emergence of new values

    • The emergence of the new order should not be seen through a western prism.
    • The triumvirate: India, the U.S., and China are intertwined with each other. China was the largest supplier of the goods to the U.S. in 2018 and it has been India’s major trading partner.
    • They take part in limited sectoral cooperation on a regional basis.
    • Both the U.S. and China have a regular high-level discussions on strategic issues with India.

        Area of future differences

    • In Asia, differences will center on overlapping priorities.
    • Security-The U.S.’s effort to maintain hegemony.
    • Economy-China’s emphasis on connectivity, markets, and growth.
    • An equitable and sustainable development-India-led framework of digital infrastructure designed as a public good.

       Conclusion

    With the rise of India and China in Asia and the presence of the U.S. with them is going to make the new order centered around Asia a new reality in the near future.

  • [op-ed snap] The Indian Constitution’s unitary tilt

    Context

    The Centre-State conflict over CAA, and the Constitutional obligation on the state to implement the laws made by the Parliament, has once again brought to the fore the fault lines in the Indian federalism.

    The opposition of the States to the Central law

    • Several state governments have declared that they would not implement the CAA.
    • Legislative Assembly of Kerala passed the resolution stating that the law contradicts the basic values.
    • The resolution is only symbolic.
    • Passage of such a resolution is not constitutionally barred.
    • But it may not be in tune with the federal scheme under the Constitution.

    What are the obligations on the States?

    • Article 256 obligates the State governments to ensure the implementation of the laws made by Parliament.
    • The Centre may give such direction as may appear to be necessary to ensure compliance with the laws made by Parliament.
    • The refusal to enforce the law even after the Centre issues direction would empower the President to impose the President’s Rule in the State.
    • Neither the refusal to implement not the official protests registered by the States carry much legal force.
    • The Calcutta High Court directed the state government to remove anti-CAA advertisements from the website.
    • The High Court barred the state from campaigning against a parliamentary law.

    The diminishing role of the Opposition

    • The parliament has been reduced to a site for procedural formalities.
    • There is a poor understanding of the role of the parliamentary Opposition in Indian politics.
    • Once the elections are over the Opposition is expected not to meddle in the governance.
    • The absence of Leader of Opposition in the Parliament for the last 6 years manifests this attitude.
    • Further, in the absence of the Opposition showing any resilience, national politics seems to be operating without a credible political check.

    The unitary tilt of the Constitution

    • Single-party dominance at the Centre has always revealed the tendency of our Constitution to concentrate the power.
    • The concentration of power is embedded in the very structure of the Constitution.
    • A ‘centrist bias’ of the Constitution further augments the power of single-party dominance.
    • Against the backdrop of the fissiparous tendencies in the backdrop of partition, it was justified for the founders to be hesitant in favour of stronger federalism.

    The rise of Electoral federalism

    • Change in voting patterns.
    • Over the last couple of years, there is huge vote swings between national and State elections in the same constituencies and separated by only a few months.
    • In other words, federalism is not a mere legal division of power, the democracy and voters too are becoming federal.
    • This embrace of electoral federalism may be one of the most significant achievements of Indian democracy.
    • Hence, parties that lose in national elections can still win State elections and form governments.
    • The State governments are thus filling the opposition deficit at the Centre.
    • This shift of opposition from Delhi to State capitals is likely to become the politics over federalism.

    Conclusion

    • The conflict that CAA triggered might become a template for future contestations over the federal question, while the politics seem to be ripe for the advancement of federalism.