Seen purely from a revenue point of view and as a fiscal policy tool, India’s GST is still on a rocky road.
Background
The GST was launched by India on the midnight of July 1, 2017.
Benefits of GST: Hailed as a landmark reform in India’s tax history, it was expected to improve tax-GDP ratio, end tax cascading, enhance efficiency, competitiveness, growth, and ensure lower prices.
Fiscal federalism: It was also projected as a watershed in India’s fiscal federalism.
the States have forgone a substantial part of their own tax revenue.
States were in turn guaranteed a GST compensation assuring 14% growth in their GST revenue during the initial five years.
India’s GST architecture: India’s GST architecture is built on the firm foundations of a GST Council and the GST Network (GSTN).
GST Council as due federal process: The first is the key decision-making body, chaired by the Union Finance Minister with a Minister of State in charge of Finance and the Finance Ministers of States as members.
This is envisaged as a due federal process to protect the interests of the States.
Unresolved issues
[1] Revenue neutrality not achieved
India’s GST paradigm stands on two key pillars: revenue neutrality and GST compensation for the States.
The assured revenue neutrality remains a mirage and many States have experienced a declining tax-GDP ratio.
Decline in tax to GDP ratio of state: In the case of major 18 States, the ratio of own tax revenue to GDP has declined.
While the share of the Centre in total GST increased by 6%, that of States put together lagged behind with only a 4.5% increase.
Stark differences between the Revenue Neutral Rates (RNR) for the producing States and consumption State have been observed. States producing exempted food grains also lost out.
Since the rates were lower under GST vis-à-vis the VAT regime, revenue neutrality was not adhered ab initio.
The problems were compounded with massive evasion following the dismantling of check posts, and later on fake invoices, that grew by leaps and bounds.
Experience of other countries: The South African experience illustrates how zero-rating and large exemptions have defeated revenue goals.
Canadian experience shows that GST could be improved by limiting zero rating, tax-exemptions and harmonising tax rates.
The resilience of the economy at the time of rolling out of GST is critical for its wider reception as the Australian experience shows.
[2] Not conducive to co-operative federalism
While the States collectively forewent 51.8% of their total tax revenue, the Centre surrendered only 28.8%.
Yet, GST is shared equally between the Centre and States despite two expert committees recommended for a higher share for the States.
Given the revenue neutrality failure and the host of other issues, many of the States are left with no option except to depend on GST compensation.
This is not conducive to sustainable co-operative federalism.
[3] Need for revenue sharing formula for IGST
Although IGST is a key source of revenue for many of the States, the clearing house mechanism and the process therein remains unknown territory.
It was pointed out that GST is discriminatory to manufacturing States, indicating the need for a revenue sharing formula that duly incentivises exporting States by sharing IGST revenue among three parties instead of two.
[4] Other issues
Swift functioning of Input tax credit: The Malaysian experience demonstrates the need for swift and transparent functioning of the input tax credit system through a flawless IT infrastructure.
We operate in an almost information vacuum especially with respect to IGST along with several glitches in the digital architecture.
GSTN is now in the doldrums.
Data monopoly: It neither makes effective use of the massive and invaluable data being generated nor shares them to enable others to make use of them.
Such practice in “data monopoly” was a fact of history in India’s statistical system and has to go sooner rather than later.
Australia, having several similarities with India, in terms of Centre and the subnational units, and destination-based, multi-stage tax with input credit provisions, has not been revenue-buoyant.
It is a matter for consideration whether widening exemptions and the replacing of income-tax by GST in the case of small and medium enterprises are advisable measures in the Indian context.
Consider the question “What are the challenges facing the GST in India? What India can learn from the experience of other countries’ experience.”
Conclusion
Despite many years of efforts in evolving an Indianised GST system and over 50 months of adjustments with over a thousand notifications, with accompanying uncertainties in the first year and the novel coronavirus pandemic and the lockdown still in the saddle, GST continues to be an unfinished agenda. But how far and how long?
Nilesh Gaikwad has a come a long way, just like his UPSC preparation.
He started in the year 2015 and fulfilled his dream in 2020. This however does not mean he is not academically inclined. Nilesh cleared the tough IIT-JEE examinations in his first attempt and graduated from IIT Bombay. After working for a year at a private firm, Nilesh quit to follow his UPSC-CSE dream. Why did he want to prepare for UPSC-CSE just when he had achieved the ‘middle-class’ settled life?
As a college student, Nilesh was never interested in UPSC-CSE. However, as an employee in an IT firm, Nilesh looked upto his boss. He wondered what motivated his boss to wake up everyday and navigate through the rigors of work. He understood that his boss had found the purpose of his life in his job.
That’s when Nilesh realized he was unable to fulfill his purpose or express his passion in a private job. “Owning a car, buying fancy gadgets and earning in lakhs — this did not drive me. Unfortunately, a private job just gives you that and nothing more.”, Nilesh said. Hailing from a small town, Nilesh wanted to go back to roots and do something for many such small towns in India. After a quick research, the idea of UPSC-CSE struck him.
He left his fulltime job to prepare for UPSC-CSE and gave nearly 4 attempts. In his 3rd attempt, he got selected for Indian Defence Accounts Service post. While undergoing training, Nilesh prepared once again under the guidance of Civilsdaily mentor Pravin Sir and finally became an IPS Officer.
Open to All, Free to Attend Ask me Anything Session with Nilesh Gaikwad
This Sunday, Nilesh will be enlightening all Civilsdaily aspirants in an Ask me Anything Webinar. This webinar is absolutely free for all to attend and everyone can air their questions to Nilesh Gaikwad IPS.
But since there is only a limited slot of one hour, invitation for the webinar is by registration only. Confirm your presence by filling the form below.
1. How to develop perseverance and self-confidence while preparing for UPSC CSE?
2. How to work on weaknesses and overcome them?
3. The right approach for Mains.
4. What to study in last 25 days for Mains 2021?
5. How to score good marks in the Personality Test (Interview)
6. Tips for beginners.
7. Importance of ‘right guidance with right direction’ to sail through the exam.
Webinar Details
If you are studying hard but are unsure that you are studying right, then its time to get some assurance from the topper himself! Register for thisfree webinar by IPS officer Nilesh Gaikwad.
The UN General Assembly has conferred Observer Status to the International Solar Alliance (ISA).
Significance of ‘Observer’ Status
Observer status is a privilege granted by some organizations to non-members to give them the ability to participate in the organization’s activities.
It is often granted by intergovernmental organizations (IGO) to non-member parties and international nongovernmental organizations (INGO) that have an interest in the IGO’s activities.
Observers generally have a limited ability to participate in the IGO, lacking the ability to vote or propose resolutions.
About International Solar Alliance (ISA)
Hq: Gurugram, India
The ISA is an alliance of more than 121 countries, most of them being sunshine countries, which lie either completely or partly between the Tropic of Cancer and the Tropic of Capricorn.
The primary objective of the alliance is to work for efficient exploitation of solar energy to reduce dependence on fossil fuels.
The alliance is a treaty-based inter-governmental organization.
The initiative was launched by PM Modi at the India Africa Summit and a meeting of member countries ahead of the 2015 United Nations Climate Change Conference in Paris in November 2015.
A total of 80 countries have signed and ratified the ISA Framework Agreement and 101 countries have only signed the agreement.
Objectives of the ISA
To mobilize investments of more than USD 1000 billion by 2030
To take coordinated action for better harmonization, aggregation of demand, risk and resources, for promoting solar finance, solar technologies, innovation, R&D, capacity building etc.
Reduce the cost of finance to increase investments in solar energy in member countries
Scale up applications of solar technologies in member countries
Facilitate collaborative research and development (R&D) activities in solar energy technologies among member countries
Promote a common cyber platform for networking, cooperation and exchange of ideas among member countries
What does ISA formation signify?
Climate action commitment: It symbolizes about the sincerity of the developing nations towards their concern about climate change and to switch to a low-carbon growth path.
Clean energy: India’s pledge to the Paris summit offered to bring 40% of its electricity generation capacity from non-fossil sources (renewable, large hydro, and nuclear) by 2030.
Global electrification: India has pledged to let solar energy reach to the most unconnected villages and communities and also towards creating a clean planet.
Global cooperation: It is based on world cooperation irrespective of global boundaries.
India’s Soft power: For India, possible additional benefits from the alliance can be a strengthening of ties with the major African countries and increasing goodwill for India among them.
India has co-chaired along with Canada the Global Methane Initiative leadership meet held virtually.
About Methane
Methane is a greenhouse gas, which is also a component of natural gas.
There are various sources of methane including human and natural sources.
The anthropogenic sources are responsible for 60 per cent of global methane emissions.
It includes landfills, oil and natural gas systems, agricultural activities, coal mining, wastewater treatment, and certain industrial processes.
The oil and gas sectors are among the largest contributors to human sources of methane.
These emissions come primarily from the burning of fossil fuels, decomposition in landfills and the agriculture sector.
Global Methane Initiative (GMI)
GMI is a voluntary Government and an informal international partnership having members from 45 countries including the United States and Canada.
The forum has been created to achieve global reduction in anthropogenic methane emission through partnership among developed and developing countries having economies in transition.
The forum was created in 2004 and India is one of the members since its inception and has taken up Vice-Chairmanship for the first time in the Steering Leadership along with USA.
National governments are encouraged to join GMI as Partner Countries, while other non-State organizations may join GMI’s extensive Project Network.
Focus areas
The initiative currently focuses on five sectors, which are known sources of anthropogenic methane emissions:
Agriculture
Coal mining
Municipal solid waste
Municipal wastewater
Oil and gas systems
Why focus on Methane?
The emission of methane is a big concern as it is a greenhouse gas having 25-28 times harmful effect than carbon dioxide
According to the UN, 25 % of the warming that the world is experiencing today is because of methane.
Methane is the second-most abundant greenhouse gas in the atmosphere, after carbon dioxide.
According to IPCC, methane accounts for about half of the 1.0 degrees Celsius net rise in global average temperature since the pre-industrial era.
Back2Basics: CO2 Equivalents
Each greenhouse gas (GHG) has a different global warming potential (GWP) and persists for a different length of time in the atmosphere.
The three main greenhouse gases (along with water vapour) and their 100-year global warming potential (GWP) compared to carbon dioxide are:
1 x – carbon dioxide (CO2)
25 x – methane (CH4) – I.e. Releasing 1 kg of CH4into the atmosphere is about equivalent to releasing 25 kg of CO2
298 x – nitrous oxide (N2O)
Water vapour is not considered to be a cause of man-made global warming because it does not persist in the atmosphere for more than a few days.
There are other greenhouse gases which have far greater global warming potential (GWP) but are much less prevalent. These are sulphur hexafluoride (SF6), hydrofluorocarbons (HFCs), and perfluorocarbons (PFCs).
There are a wide variety of uses for SF6, HFCs, and PFCs but they have been most commonly used as refrigerants and for fire suppression.
Many of these compounds also have a depleting effect on ozone in the upper atmosphere.
Radioactive pollution of water is newly emerging but is of grave concern for water pollution and human health.
Quick recap: Radioactivity
Radioactivity is the phenomenon of spontaneous emission of particles or waves from the unstable nuclei of some elements.
There are three types of radioactive emissions: Alpha, Beta and Gamma.
Alpha particles are positively charged He atoms, beta particles are negatively charged electrons and gamma rays are neutral electromagnetic radiations.
Radioactive elements are naturally found in the earth’s crust.
Radioactive contamination of Water
Natural: Percolation of naturally occurring radioactive materials (NORM) from the soil sediments to the aquifer causes groundwater contamination.
Man-made: Anthropogenic sources of such pollution include- nuclear weapon investigation, nuclear calamities, nuclear powerhouses and dumping of radioactive waste.
Various contaminant elements
Uranium, thorium and actinium are three NORM series that contaminate water resources.
A number of radionuclides are found in surface and subsurface waters, among which 3H, 14C, 40K, 210Pb, 210Po, 222Rn, 226Ra, 228Ra, 232Th and 234,235,238U are common.
Strontium-90, Caesium-137, etc are also formed by nuclear reactors, along with numerous unnecessary radioisotopes wastes.
40K and 7Be are the most commonly found radioactive elements in the sludge generated in sewage treatment plants.
Nuclear reactors produce radioisotopes (Cobalt-60, Iridium-192, etc) that hand out as sources of gamma radiation in radiotherapy and numerous industrial appliances.
Oceanic sources
Oceans and seas are the natural repositories of naturally occurring uranium. It is found in the form of uranyl carbonate ion.
A significant concentration of uranium is supposed to be found in the greater salinity of the marine water.
40K (Radioactive Potassium) is also found in considerable concentration in the marine environment.
Measuring radioactive pollution
Radioactivity is measured in Becquerel (SI unit) or in Curie.
Energy absorbed per unit mass is measured by Gray, while the unit Sievert measures the quantity of radiation absorbed by human tissues.
A small amount of radiation is found in all types of water but the extended amount of radiation is harmful to human health.
Radioactivity in drinking water can be determined by a gross alpha test.
Hazards of such pollution
Radioactive elements have an effect on the environment and can cause a risk to human healthiness if inhaled, injected or exposed.
Human tissues absorb radiation through polluted water and foodstuff, which can cause serious health risks.
High doses of radiation can cause acute radiation syndrome or cutaneous radiation injury.
Exposure to radiation causes various disorders in human physiology, including cancer, leukaemia, genetic mutations, osteonecrosis, cataracts and chromosomal disruption.
NASA has launched a new mission named Imaging X-ray Polarimetry Explorer or IXPE.
About IXPE
IXPE observatory is a joint effort of NASA and the Italian Space Agency.
The mission will study “the most extreme and mysterious objects in the universe – supernova remnants, supermassive black holes, and dozens of other high-energy objects.”
The mission’s primary length is two years and the observatory will be at 600 kilometers altitude, orbiting around Earth’s equator.
IXPE is expected to study about 40 celestial objects in its first year in space.
What are the instruments onboard?
IXPE carries three state-of-the-art space telescopes.
Each of the three identical telescopes hosts one light-weight X-ray mirror and one detector unit.
These will help observe polarized X-rays from neutron stars and supermassive black holes.
By measuring the polarization of these X-rays, we can study where the light came from and understand the geometry and inner workings of the light source.
This new mission will complement other X-ray telescopes such as the Chandra X-ray Observatory and the European Space Agency’s X-ray observatory, XMM-Newton.
Why is it important?
The mission will help scientists answer questions such as:
How do black holes spin?
Was the black hole at the center of the Milky Way actively feeding on surrounding material in the past?
How do pulsars shine so brightly in X-rays?
What powers the jets of energetic particles that are ejected from the region around the supermassive black holes at the centers of galaxies?
PM will inaugurate the Saryu Nahar National Project.
Saryu Nahar National Project
The Project involves the interlinking of five rivers – Ghaghara, Saryu, Rapti, Banganga and Rohini to ensure optimum usage of water resources of the region.
It will benefit nine districts of Eastern Uttar Pradesh namely – Bahraich, Shravasti, Balrampur, Gonda, Siddharthnagar, Basti, Sant Kabir Nagar, Gorakhpur and Maharajganj.
The sub canals with a length of 6,600km have been linked to the 318km main canal.
The work on the project started in 1978 but due to lack of continuity, it got delayed and was not completed even after nearly four decades.
Benefits offered
The project will provide assured water for irrigation of over 14 lakh hectares of land and benefit about 29 lakh farmers of over 6200 villages.
The farmers of the region, who were the worst sufferers of the inordinate delay in the project, will now immensely benefit from the upgraded irrigation potential.
They will now be able to grow crops on a larger scale and maximize the agri-potential of the region.
Back2Basics: Sarayu River
The Sarayu is a river that originates at a ridge south of Nanda Kot mountain in Bageshwar district in Uttarakhand.
It flows through Kapkot, Bageshwar, and Seraghat towns before discharging into the Sharda River at Pancheshwar at the India—Nepal border.
Lower Ghaghara is also popularly known as Sarayu in India.
Especially while it flows through the city of Ayodhya, the birthplace of legendary Rama.
Nilesh Gaikwad has a come a long way, just like his UPSC preparation.
He started in the year 2015 and fulfilled his dream in 2020. This however does not mean he is not academically inclined. Nilesh cleared the tough IIT-JEE examinations in his first attempt and graduated from IIT Bombay. After working for a year at a private firm, Nilesh quit to follow his UPSC-CSE dream. Why did he want to prepare for UPSC-CSE just when he had achieved the ‘middle-class’ settled life?
As a college student, Nilesh was never interested in UPSC-CSE. However, as an employee in an IT firm, Nilesh looked upto his boss. He wondered what motivated his boss to wake up everyday and navigate through the rigors of work. He understood that his boss had found the purpose of his life in his job.
That’s when Nilesh realized he was unable to fulfill his purpose or express his passion in a private job. “Owning a car, buying fancy gadgets and earning in lakhs — this did not drive me. Unfortunately, a private job just gives you that and nothing more.”, Nilesh said. Hailing from a small town, Nilesh wanted to go back to roots and do something for many such small towns in India. After a quick research, the idea of UPSC-CSE struck him.
He left his fulltime job to prepare for UPSC-CSE and gave nearly 4 attempts. In his 3rd attempt, he got selected for Indian Defence Accounts Service post. While undergoing training, Nilesh prepared once again under the guidance of Civilsdaily mentor Pravin Sir and finally became an IPS Officer.
Open to All, Free to Attend Ask me Anything Session with Nilesh Gaikwad
This Sunday, Nilesh will be enlightening all Civilsdaily aspirants in an Ask me Anything Webinar. This webinar is absolutely free for all to attend and everyone can air their questions to Nilesh Gaikwad IPS.
But since there is only a limited slot of one hour, invitation for the webinar is by registration only. Confirm your presence by filling the form below.
1. How to develop perseverance and self-confidence while preparing for UPSC CSE?
2. How to work on weaknesses and overcome them?
3. The right approach for Mains.
4. What to study in last 25 days for Mains 2021?
5. How to score good marks in the Personality Test (Interview)
6. Tips for beginners.
7. Importance of ‘right guidance with right direction’ to sail through the exam.
Webinar Details
If you are studying hard but are unsure that you are studying right, then its time to get some assurance from the topper himself! Register for thisfree webinar by IPS officer Nilesh Gaikwad.
The recent killing of civilians by security forces in a case of alleged mistaken identity in Nagaland has once again rekindled the debate over the Armed Forces Special Powers Act (AFSPA).
Six civilians said to be workers in a coal mine were killed by security forces in an area between Tiru and Oting village in Nagaland’s Mon district. The incident triggered violence in the area in which eight more civilians were killed after security forces allegedly opened fire.
The killing of civilians has been condemned by local civil society organizations, Naga outfits, national political parties, and the state government itself. The Government has promised an inquiry by a Special Investigation Team.
What can be the impact of the killings?
Retard the peace process: It can stall the ongoing Naga peace process and has the potential to revive the narrative of India versus the Naga people.
Threat to internal security: The incident can be used by the insurgent groups to recruit and even strengthen the positions.
Resentment among groups:
NSCN(I-M), the key Naga group negotiating with the Centre, has already declared the incident as a “black day” for all Nagas.
While, Naga National Political Group (NNPG) has blamed the continued implementation of the Armed Forces Special Powers Act (AFSPA), 1958 for such incidents.
Demand for repeal of AFSPA: There have been mounting demands for repeal of AFSPA in the Nagaland region.
Multiple views of the incident
Opportunity for Naga separatists to push their demands: For those sympathetic to the rebel Nagas, this is an opportunity to tarnish the image of the Army, demand its withdrawal from the area, and push their agenda to demand a separate Constitution and a separate flag for the Naga separatists.
Difficult task for security forces amidst insurgencies: It must be remembered that the security forces are performing an extremely difficult and complicated task in the midst of multiple insurgencies in the Northeast.
Counterinsurgency operations are full of uncertainties and in such a situation, mistakes and blunders happen.
Political failure: In fact, they are paying the price for our political mis-management and blunders since the mid-fifties when trouble erupted in the Naga Hills.
Other international examples of such mishaps: In Iraq, on March 1, 2017, during a strike on ISIS near Mosul, there was an unintentional death of 14 civilians because the blast set off a secondary explosion.
Recently, on August 30, a drone strike by the US forces killed 10 civilians near the Kabul International Airport.
Proper enquiry is must: However, it cannot be denied that the incident was negligible, but it needs to be carefully investigated, and if there was any malafide or excessive use of force, the guilty must be punished.
Let us learn about the Armed Forces Special Powers Act (AFSPA), 1958 in detail.
AFSPA: A Backgrounder
The AFSPA, 1958 came into force in the context of insurgency in the North-eastern States decades ago.
It provides “special power” to the Armed Forces applies to the Army, the Air Force and the Central Paramilitary forces etc.
It has been long contested debate whether the “special powers” granted under AFSPA gives total immunity to the armed forces for any action taken by them.
Armed Forces (Special Powers) Act, 1958
Armed Forces Special Powers Act, to put it simply, gives armed forces the power to maintain public order in “disturbed areas.”
AFSPA gives armed forces the authority use force or even open fire after giving due warning if they feel a person is in contravention of the law.
The Act further provides that if “reasonable suspicion exists”, the armed forces can also arrest a person without warrant; enter or search premises without a warrant; and ban the possession of firearms.
What are the Special Powers?
The ‘special powers’ which are spelt out under Section 4 provide that:
(a) Power to use force, including opening fire, even to the extent of causing death if prohibitory orders banning assembly of five or more persons or carrying arms and weapons, etc are in force in the disturbed area;
(b) Power to destroy structures used as hide-outs, training camps, or as a place from which attacks are or likely to be launched, etc;
(c) Power to arrest without warrant and to use force for the purpose;
(d) Power to enter and search premises without a warrant to make arrest or recovery of hostages, arms and ammunition and stolen property, etc.
What are the Disturbed Areas?
A disturbed area is one that is declared by notification under Section 3 of the AFSPA.
As per Section 3, it can be invoked in places where “the use of armed forces in aid of the civil power is necessary”.
Who can declare/notify such areas?
The Central Government or the Governor of the State or administrator of the Union Territory can declare the whole or part of the State or Union Territory as a disturbed area.
A suitable notification would have to be made in the Official Gazette.
Presently ‘Disturbed Areas’
AFSPA is currently in force in Assam, Nagaland, Manipur, 3 districts of Arunachal Pradesh, and areas falling within the jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam.
In Jammu and Kashmir, a separate law Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 has been in force.
AFSPA: Is it a License to Kill?
While the operation of the Section has been controversial in itself, it has attracted much criticism when actions have resulted in the death of civilians.
Power to kill: Section 4 of the Act granted officers the authority to “take any action” even to the extent to cause the death.
Protection against prosecution: This power is further bolstered by Section 6 which provides that legal can be instituted against the officer, except with the previous sanction of the Central Government.
The case for repeal of AFSPA
The repeal of AFSPA is necessary not just for restoring constitutional sanity, but also as a way of acknowledging dark history of our conduct in Nagaland.
If the moral case for repealing AFSPA is strong, the political case points in the same direction as well.
Need for ensuring individual dignity: The political incorporation of Nagaland (and all other areas where this law applies) will be set back if the guarantees of individual dignity of the Indian Constitution are not extended.
Not state of exception: We often describe AFSPA in terms of a “state of exception”.
But this theoretical term is misleading. How can a law that has been in virtually continuous existence since 1958 be described as an “exception”.
Why AFSPA is counterproductive to Army
Distortion of choice: First, giving wide immunity to the forces can distort the choice of strategy in counter insurgency operations.
Reduce professionalism: Second, wider immunity can often reduce rather than increase the professionalism of the forces.
Against federalism: Third, we are constantly in the vicious circle that leads to central dominance in a way that undermines both Indian federalism and operational efficiency.
Powers and limits under AFSPA
The Act grants extraordinarily sweeping powers to the armed forces of search, seizure, arrest, the right to shoot to kill.
No blanket immunity: It is true that AFSPA does not grant blanket immunity.
The SC guidelines: The Supreme Court laid down guidelines for the use of AFSPA in 1997; and in principle, unprofessional conduct, crimes and atrocities can still be prosecuted.
But this will run into two difficulties.
Lack of accountability mechanism: As the Jeevan Reddy Committee that advocated the repeal of AFSPA pointed out, the accountability mechanisms internal to AFSPA have not worked.
In 2017, the Supreme Court ordered a probe into 1,528 extra-judicial killings in Manipur.
At the least, this order seemed to suggest the problems with AFSPA were systemic.
But there have apparently been no hearings in this case for three years.
Lack of human empathy: At the heart of AFSPA is a profound mutilation of human empathy.
Our discourse is a rather abstract one, balancing concepts of human rights and national security.
Supreme Court’s Observations over AFSPA
These extra-judicial killings became the attention of the Supreme Court in 2016.
It clarified that the bar under Section 6 would not grant “total immunity” to the officers against any probe into their alleged excesses.
The judgment noted that if any death was unjustified, there is no blanket immunity available to the perpetrator(s) of the offense.
The Court further noted that if an offense is committed even by Army personnel, there is no concept of absolute immunity from trial by the criminal court constituted under the CrPC.
Constitutionality of AFSPA
Attempts have been made to examine the constitutionality of the Act on the grounds that it is contravention to the:
Right to Life and Personal Liberty (Article 21) and
Federal structure of the Constitution since law and order is a State subject
Recommendations to repeal AFSPA
(1) Justice B.P. Jeevan Reddy Commission
The 2004 Committee headed by Justice B.P. Jeevan Reddy, the content of which has never officially been revealed by the Government, recommended that AFSPA be repealed.
Additionally, it recommended that appropriate provisions be inserted in the Unlawful Activities Prevention Act, 1967 (UAPA) instead.
It also recommended that the UAPA be modified to clearly specify the powers of the armed forces and paramilitary forces and grievance cells should be set up in each district where the armed forces are deployed.
(2) ARC II
The Administrative Reforms Commission in its 5th Report on ‘Public Order’ had also recommended that AFSPA be repealed.
It recommended adding a new chapter to be added to the Unlawful Activities Prevention Act, 1967.
However, the recommendation was considered first and then rejected.
Other issues with AFSPA
(1) Sexual Misconduct by Armed Forces
The issue of violation of human rights by actions of armed forces came under the consideration of the Committee on Amendments to Criminal Law (popularly known as Justice Verma Committee) set up in 2012.
It observed that- in conflict zones, legal protection for women was neglected.
(2) Autocracy
The reality is that there is no evidence of any action being taken against any officer of the armed forces or paramilitary forces for their excesses.
The caution given by the Supreme Court
A July 2016 judgment authored by Justice Madan B. Lokur in Extra Judicial Execution Victim Families Association quoted the “Ten Commandments” issued by the Chief of the Army Staff for operations in disturbed areas:
Definite circumstances: The “power to cause death is relatable to maintenance of public order in a disturbed area and is to be exercised under definite circumstances”.
Declaration preconditions: These preconditions include a declaration by a high-level authority that an area is “disturbed”.
Due warning: The officer concerned decides to use deadly force on the opinion that it is “necessary” to maintain public order. But he has to give “due warning” first.
No arbitrary action: The persons against whom the action was taken by the armed forces should have been “acting in contravention of any law or order for the time being in force in the disturbed area”.
Minimal use of force: The armed forces must use only the “minimal force required for effective action against the person/persons acting in contravention of the prohibitory order.”
Empathy with perpetrators: The court said that: the people you are dealing with are your own countrymen. All your conduct must be dictated by this one significant consideration.
People friendliness: The court underscored how the Commandments insist that “operations must be people-friendly, using minimum force and avoiding collateral damage – restrain must be the key”.
Good intelligence: It added that “good intelligence is the key to success”.
Compassion: It exhorted personnel to “be compassionate, help the people and win their hearts and minds. Employ all resources under your command to improve their living conditions”.
Upholding Dharma (Duty): The judgment ended with the final Commandment to “uphold Dharma and take pride in your country and the Army”.
Conclusion
Despite demands by civil society groups and human rights activities, none of the recommendations have not been implemented to date.
It is high time that all parties come together to repeal AFSPA. It will also be in the fitness of things if all parties got together to acknowledge the trauma in Nagaland and elsewhere.
This will strengthen, not weaken, the comatose Indian constitutional project.
Try this question for mains:
Q. Evaluate the need for AFSPA in disturbed areas. Discuss in the context of the recent Nagaland incident.
Nilesh Gaikwad has a come a long way, just like his UPSC preparation.
He started in the year 2015 and fulfilled his dream in 2020. This however does not mean he is not academically inclined. Nilesh cleared the tough IIT-JEE examinations in his first attempt and graduated from IIT Bombay. After working for a year at a private firm, Nilesh quit to follow his UPSC-CSE dream. Why did he want to prepare for UPSC-CSE just when he had achieved the ‘middle-class’ settled life?
As a college student, Nilesh was never interested in UPSC-CSE. However, as an employee in an IT firm, Nilesh looked upto his boss. He wondered what motivated his boss to wake up everyday and navigate through the rigors of work. He understood that his boss had found the purpose of his life in his job.
That’s when Nilesh realized he was unable to fulfill his purpose or express his passion in a private job. “Owning a car, buying fancy gadgets and earning in lakhs — this did not drive me. Unfortunately, a private job just gives you that and nothing more.”, Nilesh said. Hailing from a small town, Nilesh wanted to go back to roots and do something for many such small towns in India. After a quick research, the idea of UPSC-CSE struck him.
He left his fulltime job to prepare for UPSC-CSE and gave nearly 4 attempts. In his 3rd attempt, he got selected for Indian Defence Accounts Service post. While undergoing training, Nilesh prepared once again under the guidance of Civilsdaily mentor Pravin Sir and finally became an IPS Officer.
Open to All, Free to Attend Ask me Anything Session with Nilesh Gaikwad
This Sunday, Nilesh will be enlightening all Civilsdaily aspirants in an Ask me Anything Webinar. This webinar is absolutely free for all to attend and everyone can air their questions to Nilesh Gaikwad IPS.
But since there is only a limited slot of one hour, invitation for the webinar is by registration only. Confirm your presence by filling the form below.
1. How to develop perseverance and self-confidence while preparing for UPSC CSE?
2. How to work on weaknesses and overcome them?
3. The right approach for Mains.
4. What to study in last 25 days for Mains 2021?
5. How to score good marks in the Personality Test (Interview)
6. Tips for beginners.
7. Importance of ‘right guidance with right direction’ to sail through the exam.
Webinar Details
If you are studying hard but are unsure that you are studying right, then its time to get some assurance from the topper himself! Register for thisfree webinar by IPS officer Nilesh Gaikwad.
