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[op-ed snap] Implementing NOTA in the right spirit

Note4students

Mains Paper 2: Polity | Salient features of the Representation of People’s Act

From the UPSC perspective, the following things are important:

Prelims level: NOTA option in elections

Mains level: Changes initiated in the election process by Maharashtra & Haryana Election commissions and need of replicating these across states


Context

NOTA provision

  1. In People’s Union For Civil Liberties v. Union Of India (September 27, 2013), the Supreme Court had ruled that a None of the Above (NOTA) option “may be provided in EVMs” so that voters are able to exercise their “right not to vote while maintaining their right of secrecy”
  2. On October 29 that year, the Election Commission of India (ECI) said that if a situation arose where the number of NOTA votes exceeded the number of votes polled by any of the candidates, the candidate with the highest number of votes would be declared the winner
  3. This, it said, was in accordance with Rule 64 of the Conduct of Elections Rules, 1961
  4. This provision made the NOTA option almost redundant
  5. While it ensured confidentiality for a voter who did not want to choose any of the candidates and yet wished to exercise her franchise, the provision clarified that a NOTA vote would not have any impact on the election result, which is what interests candidates, political parties, and voters
  6. Soon after this, candidates began campaigning against NOTA, telling voters that choosing the option meant wasting a vote

SC view of NOTA

  1. The ECI seemed to have completely overlooked the spirit of the judgment, illustrated in the following excerpts
  2. For democracy to survive, it is essential that the best available men should be chosen as people’s representatives
  3. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote
  4. Thus, in a vibrant democracy, the voter must be given an opportunity to choose NOTA, which will compel the political parties to nominate a sound candidate
  5. Democracy is all about choice. This choice can be better expressed by giving the voters an opportunity to verbalize themselves unreservedly and by imposing least restrictions on their ability to make such a choice
  6. By providing a NOTA button in the EVMs, it will accelerate the effective political participation in the present state of the democratic system and the voters will be empowered
  7. When the political parties will realize that a large number of people are expressing their disapproval with the candidates there will be a systemic change and the political parties will be forced to accept the will of the people and field candidates who are known for their integrity

Changes at the state level started by ECI

  1. The State Election Commission (SEC) of Maharashtra was the first to understand the spirit of the judgment
  2. It issued a reasoned order on June 13 saying, “If it is noticed while counting, that NOTA has received the highest number of valid votes, then the said election for that particular seat shall be countermanded and fresh elections shall be held for such post.”
  3. This was commendable, but it stopped short of giving NOTA the teeth that the court wanted. It meant that the same candidates could contest the new election, which meant that the result could be the same as earlier
  4. The SEC of Haryana, in an order dated November 22, stated that if “all the contesting candidates individually receive lesser votes than NOTA,” then not only would “none of the contesting candidates be declared as elected,” but “all such contesting candidates who secured less votes than NOTA shall not be eligible to re-file the nomination/contest the re-election

Powers of State ECs

  1. The two SECs are within the ambit of the Constitution and various Supreme Court judgments to issue these orders for various reasons: they have powers identical to the ECI for elections that take place in their jurisdictions
  2. They have plenary powers to issue directions in areas related to the conduct of elections where there is no specific legislation, till such time as Parliament or the State Assembly enacts such legislation; and there is no specific legislation pertaining to NOTA

Way forward

  1. With two SECs showing the way, the remaining SECs and the ECI should follow suit so that political parties are compelled to nominate sound candidates, and are forced to accept the will of the people, as desired by the highest court in the land
Electoral Reforms In India

[op-ed snap] A solution in search of a problem

Note4students

Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary

From the UPSC perspective, the following things are important:

Prelims level: Article 233, 234, 312

Mains level: Vacancy across various levels of the judiciary and the idea of an All India Judicial Service


Context

Idea of a pan India judicial service

  1. In its report, ‘Strategy for New India@75’, the NITI Aayog mooted the creation of an All India Judicial Service (AIJS) for making appointments to the lower judiciary through an all India judicial services examination conducted by the Union Public Service Commission (UPSC) in order to maintain “high standards” in the judiciary
  2. Similar proposals were made by the Union Law Minister on three different occasions this year as a solution to the problems of vacancies in the lower judiciary and a lack of representation in the judiciary from marginalised communities

The argument against AIJS

  1. The argument that the creation of the AIJS and a centralised recruitment process will help the lower judicial services is based on the assumption that the current federal structure, that vests the recruitment and appointment for the lower judiciary in the hands of State Governors, High Courts and State Public Service Commissions, is broken and inefficient
  2. Going by the latest figures published by the Supreme Court in its publication Court News (December 2017 and the last available figures), many States are doing a very efficient job when it comes to recruiting lower court judges
  3. The problem of vacancies is not uniform across different States and varies significantly from one state to another
  4. The argument that the centralisation of recruitment processes through the UPSC automatically leads to a more efficient recruitment process is flawed and not a guarantee of a solution
  5. For example, the Indian Administrative Service — its recruitments are through the UPSC — reportedly has a vacancy rate of 22%, while the Indian Army’s officer cadre, also under a centralised recruitment mechanism, is short of nearly 7,298 officers

Against equality

  1. Another argument in support of the AIJS is that its creation, along with provisions of reservations for the marginalised communities and women, will lead to a better represented lower judiciary
  2. Dalit and tribal politicians are supporting the AIJS on these grounds
  3. The fact is that several States already provide for reservations in their lower judicial service
  4. Unlike States, the Centre almost never provides reservation for women in the all India services
  5. On the issue of caste, an AIJS may provide for SC/ST reservation along with reservation for the Other Backward Classes (OBC) but it should be noted that a recent Supreme Court ruling has held that SC/STs can avail the benefit of reservation in State government jobs only in their home States and not when they have migrated
  6. The same principle is usually followed even for OBC reservations
  7. Thus, instituting an AIJS would mean that nationally dominant SC, ST and OBC groups would be at an advantage as they can compete for posts across the country, which they would otherwise be disqualified from because of the domicile requirement

No constitutional hurdle in creating AIJS

  1. Articles 233 and 234 of the Constitution vested all powers of recruitment and appointment with the State Public Service Commission and High Courts
  2. During the Emergency, Parliament amended Article 312 of the Constitution to allow for the Rajya Sabha to pass a resolution, by a two-thirds majority, in order to kick-start the process of creating an all India judicial service for the posts of district judge
  3. Once the resolution is passed, Parliament can amend Articles 233 and 234 through a simple law (passed by a simple majority), which law will strip States of their appointment powers
  4. This is unlike a constitutional amendment under Article 368 that would have required ratification by State legislatures
  5. In other words, if Parliament decides to go ahead with the creation of the AIJS, State legislatures can do nothing to stop the process

Way forward

  1. The AIJS is not a solution to judiciary recruitment problems and the government would be well advised to reconsider its stance
  2. The solution is to pressure poorly performing States into performing more efficiently
Judiciary Institutional Issues

[op-ed snap] The case against surveillance

Note4students

Mains Paper 2: Governance | Important aspects of governance, transparency & accountability

From the UPSC perspective, the following things are important:

Prelims level: Not much

Mains level: India’s march towards a surveillance state and preventing such moves via the right to privacy


Context

Extended surveillance of citizens

  1. A Ministry of Home Affairs (MHA) notification authorising 10 Central agencies to intercept, monitor, and decrypt online communications and data has caused a furore in both Parliament and the wider civil society
  2. The notification was described as an incremental step towards a surveillance state
  3. The government’s defence was equally swift: it protested that the notification created no new powers of surveillance. It was only issued under the 2009 Information Technology Rules, sanctioned by the previous United Progressive Alliance government
  4. The 10 agencies had not been given a blank check; rather, specific surveillance requests, the government contended, still had to be authorised by the MHA in accordance with law

Status of surveillance in India

  1. The existing surveillance framework is complex and confusing
  2. Two statutes control the field: telephone surveillance is sanctioned under the 1885 Telegraph Act (and its rules), while electronic surveillance is authorised under the 2000 Information Technology Act (and its rules)
  3. The procedural structure in both cases is broadly similar, and flows from a 1997 Supreme Court judgment: surveillance requests have to be signed off by an official who is at least at the level of a Joint Secretary

Features of the regime

  • It is bureaucratised
  1. Decisions about surveillance are taken by the executive branch (including the review process), with no parliamentary or judicial supervision
  2. An individual will almost never know that she is being surveilled means that finding out about surveillance, and then challenging it before a court, is a near-impossibility
  •  The surveillance regime is vague and ambiguous
  1. Under Section 69 of the IT Act, the grounds of surveillance have been simply lifted from Article 19(2) of the Constitution, and pasted into the law
  2. They include very wide phrases such as “friendly relations with foreign States” or “sovereignty and integrity of India”
  • The regime is opaque
  1. There is almost no information available about the bases on which surveillance decisions are taken, and how the legal standards are applied
  2. Indeed, the evidence seems to suggest that there are none: a 2014 RTI request revealed that, on an average, 250 surveillance requests are approved every day
  3. It stands to reason that in a situation like this, approval resembles a rubber stamp more than an independent application of mind

The tradeoff between security and privacy

  1. Surveillance is essential to ensure national security and pre-empt terrorist threats, and it is in the very nature of surveillance that it must take place outside the public eye
  2. Consequently, the regime is justified as it strikes a pragmatic balance between the competing values of privacy and security
  3. The staunchest civil rights advocates will not deny that an individual reasonably suspected of planning a terrorist attack should be placed under surveillance

Need for a better process

  1. A heavily bureaucratised and minimally accountable regime of surveillance does nothing to enhance security but does have significant privacy costs
  2. Such a system often has counterproductive effects: a government that is not checked in any meaningful way will tend to go overboard with surveillance and, in the process, gather so much material that actually vital information can get lost in the noise
  3. It is exceedingly important to assess the balance on the basis of constitutional principles and fundamental rights, rather than blindly accepting the government’s rhetoric of national security
  4. After the Supreme Court’s 2017 judgment in K.S. Puttaswamy v. Union of India (‘the right to privacy case’), the constitutional contours within which the questions of ‘how, when, and what kind’ have to be answered have been made clear
  5. Any impingement upon the right to privacy must be proportionate. One of the factors of the proportionality standard is that the government’s action must be the least restrictive method by which a state goal is to be realised
  6. In other words, if the same goal — i.e., protecting national security — can be achieved by a smaller infringement upon fundamental rights, then the government is constitutionally bound to adopt the method that does, indeed, involve minimal infringement

What can be done for improvement?

  1. Given the seriousness of the issue, a surveillance regime cannot have the executive sitting in judgment over the executive: there must be parliamentary oversight over the agencies that conduct surveillance
  2. They cannot simply be authorised to do so through executive notifications
  3. And equally important, all surveillance requests must necessarily go before a judicial authority, which can apply an independent legal mind to the merits of the request, in light of the proportionality standards
  4. Judicial review will not achieve much if the grounds of surveillance remain as broad and vaguely worded as they presently are
  5. Therefore, every surveillance request must mandatorily specify a probable cause for suspicion, and also set out, in reasonably concrete terms, what it is that the proposed target of surveillance is suspected of doing
  6. As a corollary, evidence obtained through unconstitutional surveillance must be statutorily stipulated to be inadmissible in court

Way forward

  1. Across the world, there is an increasingly urgent debate about how to protect basic rights against encroachment by an aggressive and intrusive state, which wields the rhetoric of national security like a sword
  2. The MHA notification lays bare the lopsided character of the surveillance framework in India and highlights an urgent need for comprehensive reform
Right To Privacy

Explained: Altruistic Surrogacy

Note4students

Mains Paper 2: Governance | Mechanisms, laws, institutions & Bodies constituted for the protection & betterment of the vulnerable sections

From the UPSC perspective, the following things are important:

Prelims level: Surrogacy (Regulation) Bill, 2016

Mains level: Various laws for the protection of women from exploitation


News

What is an altruistic surrogacy ?

  1. According to the new Surrogacy (Regulation) Bill, it includes contracting a ‘close relative’ as a surrogate by a heterosexual married couple who have been childless for five years of their marriage.
  2. This line separates altruism from the commercial tinge that surrogacy carries with it.

Reasonable Expenses to Surrogates

  1. In the U.K., laws on surrogacy allow only altruistic arrangements where the surrogate can be paid only ‘reasonable expenses’.
  2. The fluidity in defining reasonable expenses means that this should ideally include payment for medical treatment, and in-vitro fertilization (IVF) but may include other ‘expenses’.

Defining Motherhood in such cases

  1. Altruism also entails the provision that the surrogate is the legal mother of the child, which can be transferred to the parents through a legal process, including adoption.
  2. In many countries in Europe, the act of gestation defines motherhood, even though the egg used for the pregnancy through IVF may belong to the couple entering the arrangement.

Role of the surrogate

  1. As per the new Surrogacy Bill, the surrogate in India continues to fulfill her role as a gestate.
  2. In keeping with the gestational surrogacy, the current Bill is faithful to the ICMR’s Draft Assisted Reproductive Technology (Regulation) Bill, 2010.
  3. The latter has governed the practice of surrogacy till the Surrogacy Bill of 2016 banning commercial surrogacy comes into effect.
  4. The relinquishment of the child was an absolutely essential clause within the draft bills on commercial surrogacy, and in practice in the surrogacy contract.

Altruistic vs. Commercial Surrogacy

  1. The commercial surrogacy arrangement in India was an exchange of money for services: and yet, clinics and surrogacy agents went to great lengths to transform the commercial elements.
  2. These elements included were primarily identified as the surrogate’s fees, into gift-giving, and sacrifice.
  3. In that sense, altruistic surrogacy is not very different from its opposite commercial variant.
  4. Unlike the U.K., altruism in India is being defined through the tie of kinship, not through the exchange of payment for ‘services rendered’.
  5. Here, kinship and family hide the commercial element entailed in seeking a surrogate from among close relatives.
  6. Thus, much of the criticism against the Surrogacy Bill in Parliament points toward the lack of definition that the category of the ‘close relative’ carries.

A Parallel Case in Organ Donations

  1. Let’s look at the Transplantation of Human Organs Act (THOA), 1994, as a parallel to the conversation on altruism and its linkages with commercial surrogacy.
  2. The Act prescribes that organ donors are allowed to donate their organs before death only to ‘near relatives’.
  3. Donating organs to ‘strangers’ or not near relatives before death is not allowed, and may be approved of only through the authorisation committee.
  4. The category of the ‘near relative’ appears again in a similar vein to the ‘close relative’.
  5. But unlike the Surrogacy Bill, the THOA identifies ‘near relatives’ as ‘spouse, son, daughter, father, mother, brother or sister’.
  6. It’s a closed group of relatives — within the structure of the nuclear family unit — members who may not be eligible to be surrogates, unfortunately.

Word of caution

  1. By banning commercial surrogacy in favour of its altruistic avatar, the identification of ‘close relatives’ will take on a murky turn.
  2. Just like in the case of organ donation, wherein ‘strangers’ were dressed up as ‘near relatives’, in altruistic surrogacy too, similar negotiations may be entered into.
  3. In an overtly patriarchal society, women are always at the receiving end of ostracism and exploitation.
  4. In facilitating altruistic surrogacy among close kin, we have to be wary of the kind of exploitation we are fostering.
Surrogacy in India

Explained: Angel Tax Controversy

Note4students

Mains Paper 3: Economy | Investment Models

From the UPSC perspective, the following things are important:

Prelims level: Angel Tax

Mains level: Interventions required by the government to diversify India’s startup’s financing


News

Background

  1. Over past few weeks, several startups have reportedly been receiving notices from the I-T department asking them to clear taxes on the angel funding they raise.
  2. In some cases they were levied a penalty for not paying Angel Tax.
  3. However, this is not the first time that this issue has come up. Startups have been raising the issue of Angel Tax for years, requesting the government to do away with it.

Who is an Angel Investor?

  1. An angel investor is an affluent individual who provides capital for a business start-up, usually in exchange for convertible debt or ownership equity.
  2. It is also known as a business angel, informal investor, angel funder, private investor, or seed investor.

What is Angel Tax?

  1. Angel Tax is a 30% tax that is levied on the funding received by startups from an external investor.
  2. However, this 30% tax is levied when startups receive angel funding at a valuation higher than its ‘fair market value’.
  3. It is counted as income to the company and is taxed.
  4. Angel tax was introduced in 2012, with the purpose of keeping money laundering in check.
  5. The notices demanding what is known as ‘angel tax’ were served under Section 56(2) (viib) of the IT Act, which was introduced by the previous UPA government in 2012 to fight money laundering.

Why is Angel tax problematic?

  1. There is no definitive or objective way to measure the ‘fair market value’ of a startup.
  2. Investors pay a premium for the idea and the business potential at the angel funding stage.
  3. However, tax officials seem to be assessing the value of the startups based on their net asset value at one point.
  4. Several startups say that they find it difficult to justify the higher valuation to tax officials.
  5. In a notification in May, 2018, the CBDT had exempted angel investors from the Angel Tax clause subject to fulfillment of certain terms and conditions, as specified by the DIPP.
  6. However, despite the exemption notification, there are a host of challenges that startups are still faced with, in order to get this exemption.

Income Tax notices

  1. One of the reasons put forward by the IT Department to send such notices is to get information for distinguishing the genuine startups from the bogus ones.
  2. The notices essentially fall under two brackets: Notices under section 56(2) (viib) of the Income Tax Act, which is called income from other sources.
  3. This section states that any excess consideration received by a company will be treated as its income if it issues shares to a resident at a price which exceeds the fair market value of the shares.
  4. The section is invalid if consideration is received from venture capital companies, venture capital funds or a class of persons notified by the government.

Government’s stand

  1. It is a fact that less than 10% of our VC investments in startups come from domestic investors.
  2. We should liberalise the angel tax provisions to unlock the domestic capital and trigger off a new wave of startup value and job creation.
  3. The controversial sections discriminate between resident Indian investors (angel investors) and venture capital (VC) funds registered with the market regulator.
  4. The provision does not apply to investments raised via VC firms irrespective of any valuation, but the startup has to justify the valuation for the capital raised from other resident investors.

Way Forward

  1. Earlier in the year, the Department of Revenue had issued a notification directing assessing officers not to take coercive steps on recovery of angel tax against registered start-ups.
  2. But unregistered startups that have already raised angel investment may still be under the scanner of the income tax authorities.
  3. CBDT recognizes that startups are going to bring a lot of innovation to the country and, therefore, have to be supported in every possible manner.
Start-up Ecosystem In India

China launches first satellite for space-based broadband project

Note4students

Mains Paper 3: Science & Technology | Awareness in the fields of IT, Space, Computers, robotics, nano-technology, bio-technology

From UPSC perspective, the following things are important:

Prelims level: Hongyun Project

Mains level: Global quest for low-cost, high-performance satellite network


News

  • China on December 22 launched its first communication satellite to provide broadband internet services worldwide in an apparent bid to rival Google and other international firms.

Hongyun Project

  1. The Hongyun project, started in September 2016, aims to build a space-based communications network to provide broadband internet connectivity to users around the world, especially those in the underserved regions.
  2. The satellite was launched from a Long March 11 carrier rocket from the Jiuquan Satellite Launch Centre in north-western China.
  3. It is the first in the Hongyun project planned by China Aerospace Science and Industry Corp (CASIC).
  4. The spacecraft is tasked with verifying basic designs of Hongyun satellite and demonstrating low-orbit broadband communications technologies.

About the Satellite

  1. Weighing 247 kilograms, the satellite works in a sun-synchronous orbit about 1,100 kilometres above earth.
  2. It is powered by solar arrays and has a design life of one year, but is expected to operate longer.
  3. CASIC plans to launch four mass-production Hongyun satellites in future.

A Global Quest

  1. The concept of running a low-cost, high-performance satellite network to provide space-based communications and internet services has become popular globally among industry players.
  2. Currently, many foreign tech companies, including Google, SpaceX, OneWeb and Telesat, have already launched plans to use satellites to provide free internet access.
  3. The U.S.’ SpaceX launched two experimental satellites last month to test technologies for its Starlink project, in which tech tycoon Elon Musk proposes to put a total of nearly 12,000 satellites into orbit by the mid-2020s.
  4. Similarly, U.S. firm, OneWeb, plans to launch a satellite constellation of 648 low-Earth orbit microsatellites by the end of 2019, though few developments have been reported.
  5. Chinese internet technology firm unveiled the first satellite in a constellation plan comprising of 272 satellites to provide free WiFi service worldwide.
International Space Agencies – Missions and Discoveries

India’s first music museum to be set up in Thiruvaiyaru

Note4students

Mains Paper 1: Arts and Culture | Indian culture will cover the salient aspects of Art Forms, Literature and Architecture from ancient to modern times

From the UPSC perspective, the following things are important:

Prelims level:  Carnatic Music and its Trinity

Mains level: Classical art forms of India


News

  • The country’s first music museum will be set up with assistance from the Central government in Thiruvaiyaru, Tamil Nadu, the birth place of Saint Tyagaraja, one of the Trinities of Carnatic music.

Trinities of Carnatic music

  1. The other two of the Trinity are Muthuswami Dikshitar and Syama Sastri.
  2. All three composers were born in Thiruvarur, formerly part of Thanjavur District in Tamilnadu.
  3. Along with Purandaradasa, the Pitamaha or father of Carnatic music, the trinity are considered in a way the greatest musicians and composers of the tradition.

Saint Tyagaraja

  • Tyagaraja, also known as Tygayya in Telugu, was a renowned composer of Carnatic music, a form of Indian classical
  • He was prolific and highly influential in the development of the classical music tradition.
  • Tyagaraja saw the reigns of four kings of Maratha dynasty Tulaja II (17631787), Amarasimha (17871798), Serfoji II (17981832) and Sivaji II (18321855), although he served none of them.

Saint Muthuswami Dikshitar

  • His compositions, of which around 500 are commonly known, are noted for their elaborate and poetic descriptions of Hindu gods and temples and for capturing the essence of the raga forms through the vainika (veena) style that emphasises gamakas.

Saint Syama Sastri

  • Although Syma Sastri did not compose as so many kritis as his two prolific contemporaries, his compositions are still well known due to the literary, melodic and rhythmic proficiency observed in them.

Back2Basics

Carnatic Music

  1. It is a system of music commonly associated with South India, including the modern Indian states of Andhra Pardesh, Telangana, Karnataka, Kerala, and Tamil nadu as well as Sri Lanka .
  2. The basic elements are śruti (the relative musical pitch), swara (the musical sound of a single note), rāga (the mode or melodic formulæ), and tala (the rhythmic cycles).
  3. It is usually performed by a small ensemble of musicians, consisting of a principal performer (usually a vocalist), a melodic accompaniment (usually a violin), a rhythm accompaniment (usually a mridangam), and a tambura, which acts as a drone throughout the performance.
  4. Other typical instruments used in performances may include the ghatam, kanjira, morsing, venu flute, veena, and chitraveena.
  5. The main emphasis in Carnatic music is on vocal music; most compositions are written to be sung, and even when played on instruments, they are meant to be performed in gayaki (singing) style.

Buddhist site museum at Lalitgiri Odisha

Note4students

Mains Paper 1: Arts and Culture | Indian culture will cover the salient aspects of Art Forms, Literature and Architecture from ancient to modern times

From the UPSC perspective, the following things are important:

Prelims level:  Lalitgiri Museum, Diamond Triangle

Mains level: Buddhist Architecture


News

  • One of the earliest Buddhist settlements in Odisha, Lalitgiri (Located in Cuttack district), where excavations have yielded ancient seals and inscriptions, has been converted into a museum.

Lalitgiri Museum

  1. Located in Cuttack district, it will be the third site museum of the Bhubaneswar circle of the ASI after Ratnagiri and Udaygiri.
  2. The three sites together form the Diamond Triangle of Buddhism in Odisha.
  3. The museum complex is spread over 4,750 sq. m. The building and auditorium are built over 1,310 sq. m. The complex has been constructed at a cost of ₹10 crore.

Historical importance of Lalitgiri

  1. Excavations at Lalitgiri have yielded the remains of four monasteries, showing cultural continuity from the post-Mauryan period till the 13th century CE.
  2. Tantric Buddhism was practiced at this site.
  3. The centre of attraction is a relic casket containing corporal remains found inside the Mahastupta.
  4. Huge sculptures of Buddha, architectural fragments of Viharas and Chaityas are arranged period-wise.
  5. The central gallery is designed after a Buddha Mandala with a colossal Buddha image at the centre and six Bodhisattva images surrounding it.
Historical and Archaeological Findings in News