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Subject: Governance

Important aspects of Society

  • Speedy trial a fundamental right: HC

    The Bombay High Court has said that speedy trial is a fundamental right highlighting the issue of people languishing in prisons waiting for the trial to begin.

    Background

    • The HC was hearing a petition seeking a judicial probe into the death of a tribal rights activist.
    • The petitioner told the court that he was not looking for the cause of the death, but an inquiry into what happened in jail that ultimately led to his death.

    Right to speedy trial

    • It is a right under which it is asserted that a government prosecutor may not delay the trial of a criminal suspect arbitrarily and indefinitely.
    • Otherwise, the power to impose such delays would effectively allow prosecutors to send anyone to jail for an arbitrary length of time without trial.
    • Right to speedy trial is a concept gaining recognition and importance day by day.

    Its constitutional status

    • The right to speedy trial is guaranteed under Article 21 of the Constitution of India.
    • In the case Kartar Singh v. State of Punjab (1961) it was declared that right to speedy trial is an essential part of fundamental right to life and liberty.
    • Article 21 declares that “no person shall be deprived of his life or personal liberty except according to the procedure laid by law.”

    What causes delay?

    • Delay in disposition of cases due to huge pendency
    • Provision for adjournment
    • Vacation of the court
    • Investigative agencies generally delay

    Why speedy trial is necessary?

    The right to a speedy trial serves several important purposes:

    • First, requiring a speedy trial helps to ensure that a defendant does not have to spend an unreasonable amount of time in jail.
    • It also helps to respect and protect the mental health of the defendant by making sure that the defendant is not kept in suspense or anxiety over pending criminal charges for months or years at a time.
    • The right to a speedy trial protects a defendant’s ability to gather evidence for his or her own defense.
    • Over time, physical evidence can become harder and harder to locate, and witnesses may move, lose their memories of an event, or even pass away.

    Alternative solutions

    • The Law Commission of India and the Malimath Committee recommended that the system of plea bargaining should be introduced in Indian criminal justice system.
    • Plea bargaining refers to a person charged with a criminal offence negotiating with the prosecution for a lesser punishment than what is provided in law by pleading guilty to a less serious offence.
    • This will facilitate the speedy disposal of criminal cases and reduces the burden on the courts at least for some minor trials and not serious criminal offences.

  • [pib] SMILE Scheme for persons engaged in the act of begging

    The Ministry of Social Justice and Empowerment has formulated a scheme “SMILE – Support for Marginalized Individuals for Livelihood and Enterprise”.

    SMILE Scheme

    • This scheme is sub-scheme under the ‘Central Sector Scheme for Comprehensive Rehabilitation of persons engaged in the act of Begging’.
    • It covers several comprehensive measures including welfare measures for persons who are engaged in the act of begging.
    • The focus of the scheme is extensively on rehabilitation, provision of medical facilities, counselling, basic documentation, education, skill development, economic linkages and so on.
    • The scheme would be implemented with the support of State/UT Governments/Local Urban Bodies, Voluntary Organizations, Community Based Organizations (CBOs), institutions and others.
    • Scheme provides for the use of the existing shelter homes available with the State/UT Governments and Urban local bodies for rehabilitation of the persons engaged in the act of Begging.
    • In case of non-availability of existing shelter homes, new dedicated shelter homes are to be set up by the implementing agencies.

  • Issue of undertrials

    Context

    After the death of Stan Swamy, questions about the conditions of jails and treatment of the incarcerated have been raised anew.

    Issue of deaths of prisoners

    • The NCRB data reports the death of over 1,800 prisoners in the year 2018. An estimated 70 percent of prison inmates are undertrials.
    • Despite constitutional provisions like Article 21, which says, no person shall be denied life or liberty except by the due process of law, the number of undertrials is increasing.

    How prisoners are subjected to additional torture

    • Overcrowding, delayed medical attention, unhygienic conditions and malnutrition exist in all Indian prisons.
    • It is the responsibility of the State and the judiciary to ensure that they are only deprived of their liberty and are not exposed to any additional torture in the form of medical deprivation, unhygienic conditions, bad or inadequate food, etc.
    • Yet, thousands are dying every year and the prison authorities are not made accountable.

    Way forward

    • Acts of extreme neglect that could result in the death of inmates should be acknowledged as extrajudicial torture and made an offense.
    • The SC in Sunil Batra (I) v. Delhi Administration (1978), held that “the humane thread of jail jurisprudence that runs right through is that no prison authority enjoys amnesty for unconstitutionality”.
    • ARC Recommendations on Prison Reforms: The Union and State Governments should work out, fund and implement at the
      earliest, modernization and reforms of the Prison System as recommended by the All India Committee on Jail Reforms (1980-83).
      b. The attendant legislative measures should also be expedited.
      c. Rules regarding Parole and Remission need to be reviewed.
    • Infrastructure: Prisoner Information System, Biometric Identification, facilities for pregnant women, up-gradation of hospitals, etc is needed.
    • Strengthening the Open Prison System.

    Conclusion

    The government needs to take urgent measures to address the issue of additional torture in various forms and the death of prisoners.

  • Need for social security to migrant and informal workers

    Context

    The migrants’ crisis after the two covid waves compelled policy-makers to make certain provisions for them in the schemes announced for the assistance of the poor.

    Supreme Court judgement on the issue

    • On June 29, the Supreme Court finally delivered its judgment on the plight of migrant labour.
    • The judgement was notable for two main reasons.
    • First, it recognised that there was the large-scale exclusion of migrant workers and other informal workers from existing schemes due to the lack of their registration and outdated eligibility lists.
    • It noted that no benefits will be denied to migrant workers for want of an Aadhaar card and that food assistance will be provided for migrants who were not covered by the National Food Security Act.
    • Second, it connected informal workers and migrant workers, both of whom experience exclusion, and mandated that the portal for registration of all informal/migrant workers should be fully operational before July 31.

    Advantages of providing social protection

    • Investment in social protection is not charity, it is an investment in workers’ productivity and in equitable growth.
    • Providing social protection is, as the UN mooted in 2009 when it spelt out the social protection floor (SPF) initiative after the global financial crisis, the surest way out of a crisis by boosting demand at the bottom of the pyramid.
    • The report of the Advisory Committee of the ILO, in which India was represented by its labour secretary, provides a strong rationale for instituting a universal SPF during economic crises.
    • As a result, all constituents of the ILO adopted Recommendation 202 on social protection floors at the International Labour Conference in 2012.

    Inadequate provisions by government

    • The Unorganised Workers’ Social Security Act, was approved by Parliament in December 2008.
    • But it lacks the mandatory elements of the NCEUS’s proposals and included neither a National Minimum Social Security Package, nor the provision for mandatory registration.
    • Estimates show that the central government’s expenditure on all major social protection programmes declined from 1.96 per cent of GDP in 2008-09 to 1.6 per cent in 2013-14 and to only 1.28 per cent in 2019-20.

    Way forward

    • The National Commission for Enterprises in the Unorganised Sector (NCEUS) had pointed out that the circular migrant workers were a disadvantaged segment among informal workers.
    • Comprehensive law: The NCEUS had advocated a comprehensive law for the protection of the rights of all informal workers, including migrants, home workers, and domestic workers.
    • Universal registration: NCEUS had also recommended a universal registration mechanism based on self-declaration, with the issuance of a smart social security card, and a National Minimum Social Security Package.
    • Guaranteed social security/social protection: We need the provision of a minimum level of guaranteed social security/social protection for all informal workers and their households within a definite time frame.
    • More public spending: Guaranteed social protection would involve a clear framework and a commitment to greater public resources being spent on social protection as a large class of workers in India do not have an identifiable employer and a contributory social insurance framework will not work for them.
    • Recommendation 202: Government should embrace ILO’s Recommendation 202 and work towards these in a time-bound manner.

    Conclusion

    To end the silent, painful, and enduring crisis for the workers, as well as the crisis for the economy, the government must urgently recognise the right to social security, embedded both in the Indian Constitution and international covenants.

  • Draft Drone Rules, 2021

    The Ministry of Civil Aviation has released Draft Drone Rules, 2021, for public consultation. The rules will replace the Unmanned Aircraft System Rules, 2021.

    Highlights of the Draft Drone Rules 2021

    Number of forms: The rules propose to reduce the number of forms required for manufacturing, importing, testing, certifying and operating drones in India from 25 to six.

    Abolishing authorization number: The draft seeks to abolish the unique authorisation number, unique prototype identification number, and certificate of conformance that were previously required for approval of drone flights.

    Digital Sky Platform: Digital Sky, a platform launched by the government in December 2018, will become a single-window system for all approvals under the newly proposed rules.

    Airspace map: An airspace map segregating the entire landmass of India into Green, Yellow and Red zones will be published on the platform within 30 days of notification of the new rules, the government said. The map will also be machine-readable through an Application Programming Interface (API) for easier plotting of drone flight paths.

    Airport Perimeter: The draft rules reduced the airport perimeter from 45 km to 12 km. The rules state that no flight permissions would be required to fly up to 400 feet in green zones and up to 200 feet in the area between 8 and 12 km from the airport perimeter.

    Drone corridors: The government will also publish a policy framework for Unmanned Aircraft System Traffic Management (UTM) within 60 days of notifying the rules. This will also include frameworks for developing “drone corridors” for the safe transfer of goods by drones.

    Drone Promotion Council: The Rules also propose the setting up of a Drone Promotion Council, with the aim of facilitating a business-friendly regulatory regime for drones in India, the establishment of incubators for developing drone technologies and organizing competitive events to showcase drones and counter-drone solutions.

    Others: To implement safety features such as “no permission, no take-off”, real-time tracking and geofencing, drone manufacturers, importers and operators will get six months’ time to comply from the date of notification of the rules.

  • Issues with coercive Population Policy

    Context

    Recently, the government of Uttar Pradesh released a “Population Policy” in which it stated its intention to bring the gross fertility rate in the State down from the existing 2.7 to 2.1 by 2026.

    Provisions in the Bill

    • This draft law, titled the Uttar Pradesh Population (Control, Stabilisation and Welfare) Bill, 2021, seeks to provide a series of incentives to families that adhere to a two-child norm.
    • The Bill also intends on disentitling families that breach the norm from benefits and subsidies.
    • It promises public servants who undergo sterilisation and adopt a two-child norm several benefits.
    •  The draft Bill also contains a list of punishments.
    • A person who breaches the two-child norm will be debarred from securing the benefit of any government-sponsored welfare scheme and will be disqualified from applying to any State government job.
    • Existing government employees who infringe the rule will be denied the benefit of promotion.
    • Transgressing individuals will be prohibited from contesting elections to local authorities and bodies.

    Issues with coercive population control policies

    1) Counter-productive measure

    • Through an affidavit filed in court, the central government argued that “international experience shows that any coercion to have a certain number of children is counter-productive and leads to demographic distortions”. 

    2) Against international obligations

    • India is committed to its obligations under international law, including the principles contained in the International Conference on Population and Development Programme of Action, 1994.
    • Foremost in those principles was a pledge from nations that they would look beyond demographic targets and focus instead on guaranteeing a right to reproductive freedom.

    3) Against right to reproductive freedom and privacy

    •  In Suchita Srivastava & Anr vs Chandigarh Administration (2009),  the Court found that a woman’s freedom to make reproductive decisions is an integral facet of the right to personal liberty guaranteed by Article 21.
    • This ruling was endorsed by the Supreme Court’s nine-judge Bench verdict in K.S. Puttaswamy vs Union of India (2017).
    • A reading of the plurality of opinions there shows us that the Constitution sees a person’s autonomy over her body as an extension of the right to privacy.
    • A simple reading of U.P.’s draft law will show us that, if enacted, it will grossly impinge on the right to reproductive freedom.
    • However, In Javed & Ors vs State of Haryana & Ors (2003), the Court upheld a law that disqualified persons with more than two children from contesting in local body elections.
    • But the present UP Bill is far more disproportionate, therefore, the judgment in Javed can no longer be seen as good law.
    • The UP government will likely argue that there is no violation of privacy here because any decision on sterilisation would be voluntary.
    • But, as we ought to by now know, making welfare conditional is a hallmark of coercion.
    • Therefore, the proposed law will fall foul of a proportionality analysis.

    4) Negative consequences

    • An already skewed sex ratio may be compounded by families aborting a daughter in the hope of having a son with a view to conforming to the two-child norm.
    • The law could also lead to a proliferation in sterilisation camps, a practice that the Supreme Court has previously deprecated.
    • In Devika Biswas vs Union of India (2016), the Court pointed to how these camps invariably have a disparate impact on minorities and other vulnerable groups.

    Way forward

    • Experiences from other States in India show us that there are more efficacious and alternative measures available to control the growth of population, including processes aimed at improving public health and access to education.

    Conclusion

    For one thing, the reasoning of the Bill goes against the Puttaswamy case.  But as rousing as the nine-judge Bench verdict is, its legacy depends on how its findings are applied.

  • Dismissal of govt employees: What the Constitution says

    Lt Governor has dismissed 11 Jammu and Kashmir government employees for alleged terror links under provisions of Article 311(2)(c) of the Constitution.

    What is Article 311?

    • Article 311 of the Constitution deals with ‘Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State’.
    • Under Article 311(2), no civil servant can be “dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard in respect of those charges’’.
    • Subsection (c) of the provision, however, says this clause shall not apply “where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry”.

    Remedy available

    • The only available remedy to a terminated employee is to challenge the government’s decision in the High Court.

  • Case for an anti-discrimination law

    Context

    “Silent segregation” on the grounds of marital status, gender, sexual orientation or eating preferences are followed in several housing societies and residents’ associations. Legal remedies are needed for its victims.

    Issue of the prevalence of discrimination on various grounds

    • The recent Pew Research Center Report has confirmed that a substantial number of Indians prefer not to have a person from a different religious community as their neighbour.
    • The absence of a proper legal recourse for those who suffer from housing discrimination only makes matters worse.
    • Social prejudice against members of the LGBTQIA+ community in the country remains strong, despite Section 377 of the Indian Penal Code was read down by the Supreme Court of India.
    • In April, the Supreme Court, in Patan Jamal Vali vs State of Andhra Pradesh, recognised intersectional discrimination.
    • It is discrimination on the basis of the intersection of personal characteristics, such as that faced by Dalit women as Dalits, as women and in the unique category of Dalit women.
    • Discriminatory practices may also be indirect in nature, whereby policies that seem neutral and not expressly targeted at a particular group, still cause a disproportional adverse impact on disadvantaged sections of society.

    Why Article 15(1) is not enough

    • Article 15(1) of the Constitution of India prohibits the state from discriminating against individuals on basis of certain protected characteristics such as religion, race, caste, sex and place of birth.
    • But it does not bar private individuals or institutions from doing what the state is not permitted to.
    • Nor does it expressly list ethnicity, linguistic identity, nationality, marital status, sexual orientation, disability, physical appearance and other personal characteristics as prohibited grounds of discrimination.

    We need a comprehensive anti-discrimination legal framework

    • A comprehensive anti-discrimination legal framework is required to fill the existing legal lacunae.
    • India is one of the few liberal democracies without such a framework.
    • The Sachar Committee, in 2006, recognised the need for an anti-discrimination law.
    • This was further reiterated by the Expert Group on Equal Opportunity Commission headed by Prof. N.R. Madhava Menon.

    Way forward

    • The States can lead the way, by enacting anti-discrimination laws in their respective jurisdictions.
    • States have a vital role in strengthening our right to equality.
    • The State legislature can use its powers under Entry 8 of List III in the Seventh Schedule to the Constitution to enact an anti-discrimination law.
    • And if States take the initiative, the demand for a national anti-discrimination law to cover services and institutions under the domain of the Union government will be reignited.
    • The law should have provisions that prohibit employers, landlords, traders, service providers, private persons performing public functions, and public authorities, from discriminating.
    • Law should prohibit discrimination on grounds of caste, race, ethnicity, descent, sex, gender identity, gender expression, pregnancy, sexual orientation, religious identity, tribe, disability, linguistic identity, HIV-status, nationality, marital status, dietary preference, skin tone, physical appearance, place of residence, place of birth, age or analogous characteristics which are beyond the control of an individual or those that constitute a fundamental choice.
    • The law should also balance the anti-discrimination mandate with other rights guaranteed by the Constitution.
    • The anti-discrimination mandate can be restricted in pursuance of a legitimate objective.
    • Affirmative-action provisions can be included whereby public authorities are obliged to progressively realise diversification of their workforces.

    Consider the question “Article 15(1) of the Constitution of India prohibits the state from discriminating against individuals on basis of certain protected characteristics. But it does not bar private individuals or institutions from doing what the state is not permitted to. In light of this, discuss the need for anti-discrimination law in India and its provisions.”

    Conclusion

    We must recognise that anti-discrimination law is not a panacea for the problems of inequality and social prejudice that are deeply rooted in our society. Nevertheless, it is a necessary step — an idea whose time has come.

  • Arbitration in India: Issues

    Context

    Plagued by delays and rising costs, arbitration in India needs urgent attention. The pandemic has only worsened the situation.

    Issues with arbitrations process in India

    • Arbitrations in India suffers from rising costs and sluggish proceedings.
    • Arbitration proceedings are often dragged on by lawyers on either side filing misconceived applications at various stages of the proceedings.
    • Litigants, too, at times contribute to this delay with their stubbornness in not conceding a loss or defeat.
    • The courts have narrowed down the scope of judicial interference under Section 34 of the Arbitration and Conciliation Act.
    • The very limited recourse for setting aside an arbitral award under the Act invariably means that it will be upheld, even if it appears unfair or illogical.
    • The aggrieved party may well be stuck with the award and precluded forever from challenging it.
    • Arbitration hearings are generally held in camera, and decisions are usually not publicly accessible, giving rise to doubts about impartiality and fairness.
    • Arbitration proceedings have become more complex with time.
    • The Supreme Court, in Guru Nanak Foundation v. Rattan Singh and Sons, had expressed disappointment against the procedural delays and tardiness in the resolution of disputes through arbitration.
    • Even the clauses providing for fees of the arbitrators and fixed timelines for disposal are often disregarded by the players
    • The inevitable consequence of these drawbacks is a slow departure of the biggest litigant, the government, from the arbitration spectrum.
    • A sector that is dominated by approvals, protocols and scrutiny, uncertainty about the budget outlay towards arbitrations and unexpected delays in disposal does not inspire confidence and detracts from the sanctity of the process.

    Way forward

    • Arbitrators have endeavoured to simplify the proceedings by limiting the pleadings, insisting on written arguments, reducing the number of sittings and laying down a schedule for various milestones.
    • Some restraint is needed from all quarters to bring its wheels back on the tracks. These are:
    • A small check on the arbitral fees and timelines.
    • Careful drafting of arbitration clauses.
    • Stringent procedural safeguards to curb delays.
    • Expeditious disposal of the court proceedings and legislative intent towards all of the above.

    Consider the question “What are the issues faced by the arbitration in India? Suggest the measures to deal with these issues.” 

    Conclusion

    Arbitration still has the inherent potential and characteristics to outperform other modes of dispute resolution, but for that to happen, some changes are a must.

  • How China eliminated malaria and the road ahead for India

    Recently, El Salvador and China were declared malaria-free by the WHO.

    What is Malaria?

    • Malaria is a disease caused by a parasite called plasmodium vivax, p. filarium.
    • The parasite is spread to humans through the bites of infected mosquitoes.
    • People who have malaria usually feel very sick with a high fever and shaking chills.
    • While the disease is uncommon in temperate climates, malaria is still common in tropical and subtropical countries.

    How many countries have successfully eliminated malaria?

    • Since 1900, 127 countries have registered malaria elimination. This is definitely not an easy task.
    • It needs proper planning and a strategic action plan based on the local situations.
    • All these countries followed the existing tools and strategies to achieve the malaria elimination goal.
    • The main focus was on surveillance.
    How did China eliminate malaria?
    • China followed some specific strategies, namely strong surveillance following the ‘1-3-7’system: malaria diagnosis within 1 day, 3 days for case investigation and by day 7 for public health responses.
    • Molecular Malaria Surveillance for drug resistance and genome-based approaches to distinguish between indigenous and imported cases was conducted.
    • All borders to the neighboring countries were thoroughly screened to prevent the entry of unwanted malaria into the country.

    What is the current scenario of malaria in India?

    • As per the Global Malaria Report 2020 by the World Health Organization (WHO) India shared 2% of the total global malaria cases in 2019.
    • India has a great history of malaria control.
    • The highest incidence of malaria occurred in the 1950s, with an estimated 75 million cases with 0.8 million deaths per year.
    • The launch of National Malaria Control Programme in 1953 and the National Malaria Eradication Programme in 1958 made it possible to bring down malaria cases to 100,000 with no reported deaths by 1961.
    • This is a great achievement been made so far.

    Unexpected resurgence

    • But from a nearing stage of elimination, malaria resurged to approximately 6.4 million cases in 1976.
    • Since then, confirmed cases have decreased to 1.6 million cases, approximately 1100 deaths in 2009 to less than 0.4 million cases and below 80 deaths in 2019.
    • India accounted for 88% of malaria cases and 86% of all malaria deaths in the WHO South-East Asia Region in 2019.
    • It is the only country outside Africa among the world’s 11 `high burden to high impact’ countries.

    Road ahead for India

    Collaboration:

    • India is a signatory to National Framework for Malaria Elimination (NFME) 2016-2030 aiming for malaria elimination by 2030.
    • This framework has been outlined with a vision to eliminate the disease from the country which would contribute to improved health with quality of life and poverty alleviation.
    • China collaborated with Harvard University and the Massachusetts Institute of Technology, USA for Molecular Malaria Surveillance.
    • In India, there are very dedicated expert scientists who can take up such assignments.

    Diagnosis:

    • India stands at a very crucial stage. The present challenge is the detection of asymptomatic cases in most endemic areas.
    • Molecular Malaria Surveillance must be used to find out the drug-resistant variants and genetic-relatedness studies to find out the imported or indigenous cases.
    • The surveillance must be strengthened and using smart digital surveillance devices would be an important step. Real-time and organic surveillance is needed even in remote areas.

    Monitoring:

    • The results of each malaria case can be registered in a central dashboard at the National Vector Borne Disease Control Programme, as it is done for COVID-19 cases by Indian Council of Medical Research.
    • All intervention activities must strictly be monitored.
    • Vector biology, site of an actual vector mosquito bite, host shifting behaviour, feeding time, feeding behaviour and insecticide resistance studies need to be carried out to support the elimination efforts.