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Social Justice

Scam, or folklore? on 2G case verdict: (Hindu editorial) 

Context

2G acquittals call into question the political and investigative narratives of the past decade.

Questions Raised?

What is illegal from the point of view of administrative law may not necessarily be an offence from a criminal court’s perspective.

Backdrop

  • The Supreme Court declared in 2012 that the allocation of 2G spectrum by the Congress-led UPA government was illegal and an arbitrary exercise of power
  • It went on to cancel all 122 telecom licences allotted to companies in early 2008 during the tenure of A. Raja as Communications Minister

Current

With the trial court’s en masseacquittal of all those arraigned by the Central Bureau of Investigation in the 2G spectrum allocation case, the claim that this was the biggest scam in India’s history lies in tatters

Every ground rejected by SC

Every ground that the CBI had adduced to prove that Mr. Raja manipulated the first-come, first-served system to favour Swan Telecom and Unitech Wireless, among others, and helped them make a windfall profit by offloading their stakes, has been rejected by Special Judge O.P. Saini

Immediate Fallout

The immediate fallout is that the DravidaMunnetraKazhagam, to which Mr. Raja belongs, and its national ally, the Congress, will at last be in a position to shake off the perception that they were irredeemably beset by corruption

Lessons to be learnt

There is a lesson for everyone in the long 2G saga:

  • Public perception and audit reports cannot be the sole basis for criminal trials
  • Investigating agencies must carefully sift the available material before deciding to prosecute

Conclusion

Eliminating graft from public life is not only about making allegations stick during election

time, but also about diligent investigation and efficient prosecution 

Should adultery be a crime?: (Hindu editorial)  

Context

The criminalisation of an act that breaches the sanctity of a pure social institution such as marriage, by way of deceit and lies, is facing challenges in the past few decades

Article looks at the views of experts on the following question: whether adultery should be a crime or not?

1st view: YES

Critics of Section 497 are those who define morality according to their whims and fancies

Previous challenges to section 497

  • Yusuf Abdul Aziz v. The State of Bombay: The constitutionality of Section 497 of the Indian Penal Code (IPC) was previously challenged before the Supreme Court in Yusuf Abdul Aziz v. The State of Bombay(1954)
    • Section 497 is valid: A constitutional bench held then that Section 497 did not violate the right to equality as enshrined in Articles 14 and 15 of the Constitution. Sex is a sound classification and although there can be no discrimination on such account, the Constitution itself provides for special provisions with regard to women and children

Thus, Articles 14 and Article 15 read together validate Section 497 of the IPC

Guardian of moral principles

Criminal law everywhere in the world serves as a guardian of the moral principles of society, protecting a society’s historical roots while leading it towards a progressive social order. If we start subjecting laws to our personal rationale, it would lead to chaos, as a counter-narrative would always exist

What do critics of section 497 say?

Critics of Section 497 allege that the law is sexist in nature, for it only criminalises the conduct of the man while excusing the woman

  • They say that in making the husband the only person who can prosecute for adultery, the law is founded upon the idea that the status of the wife in a marriage is akin to that of the property of the husband

Legislative intent

The legislative intent behind the enactment of Section 497 is quite different from what is perceived by these critics

  • In 1847, the Law Commission of India was given the responsibility of drafting a new penal code. The Commission rendered liable only the male offender, keeping in mind “the condition of the women in this country” and the law’s duty to protect it

Law deters adulterer

The intention behind criminalising adultery in the present day is to deter the adulterer from committing such a crime again

  • One may argue that the law has failed to prevent the act of adultery. Such failure cannot be attributed to the law itself but to its enforcement

Future inconsistencies

Even if the Supreme Court were to decriminalise adultery, it would still remain intact in various personal laws, eventually leading to harrowing inconsistencies

Need for amendment

There is no denying that there exist ambiguities within Section 497 of the IPC

  • First, it only regulates the seemingly dishonest conduct of the man who commits such a crime, all the while exonerating (declaring innocent) the voluntary conduct of the wife involved
  • Second, the benefit of such a law has not been extended to the wife whose husband engages in such an offence with another woman

However, such a plight can be resolved eventually by way of an amendment

2nd View: NO

Section 497 will have to be struck down to uphold human life and dignity

In violation of Right to equality

The Constitution guarantees the fundamental right to equality and that is inconsequential of gender

  • It also gives right to life and liberty. Life means dignified existence. It has been widely interpreted. From it flow many rights to secure the principle of human dignity
  • The law on adultery, as it exists today, prima facie is violative of the fundamental right to equality

Archaic provisions

  • Only a husband can prosecute: Under Section 497, what stands out is that only a man can prosecute another man for adultery. The power is vested in a husband to control the sexuality of his lawfully wedded wife
  • Monoandry, therefore, seems the basic premise in the power equation of a marriage
  • Controlling sexuality of the wife: The wife being the sole and exclusive property of a man must be protected from any other man. Her sexuality must be controlled by the husband in order to assert this sole and exclusive claim to her body
  • Woman has no power to bring charges:A woman cannot bring this particular charge against a man as she is an object of possession in this entire flawed discourse. She has no say not only over her own body but even the body of the man to whom she is legally wedded

This itself is an archaic provision. It reinforces the submissiveness of women within the marriage

Patriarchy at its best

  • Patriarchy is about controlling the behaviour of women so that they do not demand equality, and sexual equality is a particularly sensitive area. Marriage remains a strong bastion of patriarchy
  • That any woman may choose to have a sexual relationship disregarding the institution of marriage does not lend itself well to patriarchy or our law
  • At its core, marriage builds a power hierarchy that is unequal for women. It isn’t surprising that apologists often quote the argument of the sanctity of marriage to support the criminalisation of adultery
  • The laws lend themselves well to bring about the submission of women, with the patriarchal structures prevalent in marriage as an institution

Right over one’s body

No marriage or alliance can take away one’s right over one’s own body. Therefore, while the law on adultery as it is today in the IPC is discriminatory on the ground of sex, the very existence of adultery in the criminal statute is violative of the fundamental right to life and to live with dignity

  • These issues will therefore remain unaddressed even if the court reads down Section 497 and gives women also the right to send their husbands to court

This Section will have to be struck down to do justice to the very notion of human life and dignity

3rd View: It is complicated

The premise that the woman is always the victim undermines the notion of women’s agency

What is section 497?

Section 497 provides that if a man (the offender) has sex with the wife of another man without his consent, he is punishable with imprisonment of up to five years. The wife of the other man is not punishable even as an abettor

History of adultery

Adultery is found in the Code of Hammurabi, was embraced in the Seventh Commandment, and used by Henry the VIII of England to get rid of his wife, Catherine Howard

  • Pertinently, historically it had wider application, in that it applied to sex not only between a man (married or unmarried) with a married woman but also between a married man and an unmarried woman. The institution of marriage was considered sacrosanct and a breach actionable. It was cause of annulment and divorce as also punishable with diverse sentences
  • In the present form in India, adultery was considered to be appropriate in early independent India by the Second Law Commission and upheld by the Supreme Court in Yusuf Abdul Aziz
  • The 42nd Report of the Law Commission continued it, though there was a strong dissent by Anna Chandy, who voted for its deletion on the ground that “it is the right time to consider the question whether the offence of adultery as envisaged in Section 497 is in tune with present day notions of woman’s status within marriage.”
  • Sowmithri Vishnu v. Union of India: The Supreme Court again upheld the constitutional validity of the law in Sowmithri Vishnu v. Union of India (1985), where it was held that even though the social scenario may have changed, it is not for the court but for the legislature to decide the policy of law

The law should go

  1. The very premise is against women’s autonomy and dignity
  2. Even if the argument is that marriage as an institution must not be breached, it is not understandable why an unmarried woman having sex with a married man should not be culpable
  3. Criminalisation as a rule doesn’t work in practice in altering social behaviour

For a wider food basket

Context

While under-nutrition remains high in India, over-nutrition too is becoming an emergency

High level of under-nutrition

Despite hunger (as measured by under-nutrition) decreasing, the level of under-nutrition remains unacceptably high in the country

  • India ranks 114th out of 132 countries in stunting among children aged less than five and 120th out of 130 countries in under-5 wasting, as per the Global Nutrition Report, 2016
  • The burden of vitamin and mineral deficiencies (‘hidden hunger’) is also considerable

Why such high deficiency?

  • Cereal-based food: This is because a vast majority of Indians eat cereal-based food, mainly wheat and rice
  • Insufficient intake of nutritious food:There is an insufficient intake of food such as milk, pulses, and fruits and vegetables, which are rich sources of micronutrients

Vulnerable groups

Women and children are the most vulnerable to micronutrient deficiencies. This has adverse effects on their health

  • Deficiency of iron in women not only reduces physical work capacity and causes fatigue, but could lead to depression and post-partum maternal haemorrhage
  • In children, it impairs growth and cognitive development

New problem: over-nutrition

Over-nutrition is emerging as an emergency in India

  • Findings of NFHS: As per the recent findings of the National Family Health Survey-4 (2015-16), the Body Mass Index (BMI) of 15.5% of urban women was found to be less than 18.5 kg/m2, whereas 31.3% of urban women were in the category of overweight or obese (BMI of or more than 25.0 kg/m2). Around 15% of urban men were underweight, while 26.3% belonged to the category of overweight and obese
  • Dramatic changes in lifestyle and dietary patterns in recent decades have contributed to an increasing prevalence of non-communicable diseases

How has this happened?

  • While the Green Revolution phase saw new, fast-growing varieties of staples, especially wheat and rice, the following decades saw a steady decline in the food basket diversity, especially of traditional grains such as bajra and millet, which have high nutritional value. The 1990s, though, saw a focus on the role of micronutrients. Deficiencies of micronutrients such as zinc, folic acid, magnesium, selenium and vitamin D started receiving more attention

Sustainable development goal-2

The Sustainable Development Goal-2, which aims to “end hunger, achieve food security and improved nutrition and promote sustainable agriculture”, is a priority area for India.

Way forward

To ensure food and nutrition security, there is a growing need for a multi-sectoral approach. The policies and programmes of various ministries should be converged for better results. This will not only transform India’s agricultural practices, but also spread awareness about nutritious food among key target groups, including tribals, women and children


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International

Arab outreach works, as India votes for negotiated settlement of Jerusalem:

Context

Israel-Palestine dispute

What has happened?

Reiterating its traditional policy on the Israel-Palestine dispute, India on Thursday voted for a negotiated settlement of the Jerusalem issue at the UN General Assembly with 127 other member countries

Backdrop

  • The dramatic vote came a day after a fortnight-long outreach by the Arab countries to India.
  • Saudi and Palestinian envoys met diplomats from the Ministry of External Affairs ahead of the vote
  • India has maintained since December 7 that it follows an independent policy on the issue of Jerusalem which does not get influenced by “third parties”

What was the resolution all about?

The resolution expressed deep “regret” on the December 7 declaration by U.S. President Donald Trump recognising Jerusalem as the capital of Israel

India-China border talks today

Context

India and China negotiations on the border issues

News

India and China will hold the 20th round of negotiations on the border issues on Friday

Backdrop

The meeting, comes four months after the forces of the two sides confronted each other at the Doklam plateau, will be headed by special representatives from both sides, National Security Advisor AjitDoval and his Chinese counterpart Yang Jiechi

Possible agenda

  • The One Belt One Road initiative
  • China’s opposition to Indian membership at the Nuclear Suppliers Group (NSG) and
  • The Indian opposition to China-Pakistan Economic Corridor (CPEC) that might feature in the talks
  • A new issue on the ground that may also feature is the issue of the pollution of the Siang river which has contaminated the flow of the mighty Brahmaputra in Assam. Though India has raised the issue most recently during last week’s discussion with visiting foreign minister Wang Yi, the Chinese foreign ministry’s spokesperson has dismissed the report

Polity

Manipur Assembly demands peace agreement disclosure

Context

The Manipur Assembly passed a resolution to demand disclosure of the contents of the framework agreement signed between the Union government and the NSCN(I-M)

Backdrop

The agreement was signed at the residence of Prime Minister NarendraModi on August 3, 2015, between the government’s interlocutor, R.N. Ravi, and NSCN leader ThuingalengMuivah

Oppositions’ views

  • Opposition leader OkramIbobi Singh, who was the Chief Minister at the time of singing of the agreement, said that he was not taken into confidence about the pact. He said that no other person knows the details of the agreement
  • Cutting across party lines, the members of the Assembly felt that while the territorial integrity is kept intact, there may be some clauses which are alarming.

Memorandum

  • The House constituted a four-member committee to prepare a memorandum to be submitted to the Prime Minister
  • It will demand territorial integrity and disclosure of the contents of the peace agreement

Overseas votes 

Context

The Representation of the People (Amendment) Bill of 2017, introduced by the government during the winter session of Parliament, proposes to allow non-resident Indians (NRIs) to emerge as a decisive force in the country’s electoral politics on their own terms

Amendment

  • Change in Sec 20A: The amendment paves the way to remove an “unreasonable restriction” posed by Section 20A of the Representation of the People Act, which requires overseas electors to be physically present in their electoral constituencies to cast their votes

Timeline

  • Filing of PIL: The effort to empower NRI voters began with two PILs filed by V.P. Shamsheer, a U.A.E.-based doctor, and NagenderChindam, chairman of Pravasi Bharat in London, in the Supreme Court
  • Preparation of report by ECI: The Election Commission prepared a report titled ‘Exploring Feasibility of Alternative Options for Voting by Overseas Electors’ and presented it in the apex court. The EC said NRI voters could be empowered better if the law was amended

Original RP Act

In the statement of objects and reasons for the 2017 Amendment Bill, the government explains that the original Representation of the People Act was enacted as an all-encompassing law for

  • The conduct of elections
  • Delimitation of constituencies
  • Allocation of seats in Parliament and State Legislatures
  • Corrupt electoral practices, and so on

Section 20A

Section 20A of the Act provides for registration and inclusion of overseas electors in the electoral rolls

Registration of Electors rules

The Registration of Electors Rules, 1960 provide for overseas electors to register themselves in the electoral rolls of their respective constituencies on the basis of self-attested copies of their passport and valid visa, and exercise their franchise in person on production of the original passport at the time of voting at the specified polling booth

Physical presence required

Thus, the rules demand for the physical presence of overseas electors in their respective polling stations in India on the day of polling

  • This causes hardship to the overseas electors

What does the amendment proposes?

  • This amendment proposes facilitating an external mode of voting, that is, voting by proxy, whereby such electors can exercise their franchise from their places of residence abroad
  • If the Bill is passed, overseas voters can appoint a proxy to cast their votes on their behalf, subject to certain conditions to be laid down in the Conduct of Election Rules, 1961

Impact

This would considerably mitigate the difficulties presently faced by overseas electors in exercising their franchise


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Economy

Black money: India-Swiss data sharing from Jan. 1

Context

India signed an agreement with Switzerland on Thursday that would allow automatic sharing of tax-related information from January 1 next year, the CBDT said

Backdrop

The policy-making body for the Income Tax Departmentsaid  the  agreement was signed by CBDT chairman SushilChandra  andSwiss Ambassador to IndiaAndreas Baum at the North

Block here

Joint declaration

A joint declaration  for the implementation of Automatic Exchange of Information  was  signed  lastmonth  between  the  twosides here, and it providedthat both countries wouldstart collecting data  in accordance  with  the  globalstandards  in  2018  and  ex-change  it  from  2019 onwards

GST, a work in progress

Context

We need to immediately move towards three tax slabs, and eventually two Concerns

The introduction of the Goodsand  Services  Tax  (GST)raised  much  hope  that  itwould herald the emergence of a‘good and simple tax’ with ‘one nation, one market, one tax’

  • However, there  has  been  considerableconcern with the new tax, both inits  structure  and  operational  details, including the ease of payingthe tax  and  filing  returns

Considerable work still pending

The GSTCouncil has been quite responsiveto tweak the structure and operational details to make itsimpler.Yet, considerable work needs to bedone to ensure a smooth transition and to reap the revenue andproductivity gains to the economy

Global track record of GST

According to Michael Keen, of over165 countries which have adopted GST in one form or another, only 5 have repealed it (Belize, Ghana, Grenada, Malta and Vietnam), but have reintroduced the tax later

Takes time

It is a major reform, and even asevery country makes a lot of preparations before it is introduced, ittakes time to smoothen the roughedges and settle contentious issues

Desirable features

International experience suggests that some features of the GST reform are inherently desirable, like

  • Richard Bird and Pierre-Pascal Gendron, after a detailed examination of a number of countries adopting GST, suggest that in developing countries, a threshold closer to  $100,000 would eliminate 75% of the taxpayers with a revenue loss of less than 4%
  • Fewer rates: Another desirable feature of a successful GSTis to have fewer rates. Multiplerates create  classification  problems,  are  harder  to  administer and would require the general rate of tax to be higher
  • Testing properly: It is important to prepare well before theplunge. Most countries take atleast two years to prepare for theintroduction of reform to ensure asmooth transition. This is particularly necessary for developing and testing the technology platform,educating the tax collectors and tax payers and to avoid any anomalies in the structure of the tax.

Indian context

Structure of the tax can’t be ideal

Given that the reform had to be evolved by taking into account the views of 29

States, two Union Territories with legislatures and the Union government, compromises are inevitable and it is impossible to expect the structure of the tax to be ideal. As

Problems with GST

  • The levy of three rates of cesses has also complicated the structure
  • Having four tax rates and three rates of cesses should have been avoided
  • As mentioned above, multiple rates create problems of classification, inverted duty structure and large-scale lobbying
  • It enormously complicates the technology platform to ensure input tax creditmechanism

Solution: It therefore appears desirable to move immediately towards three slabs withthe finalgoal of reducing the slabs to two

Raising threshold

Expert opinion based on international experience shows that there is much tobe gained by having the thresholdat reasonably high levels

  • International experience is that a threshold closer to $100,000 would eliminate 75% of the taxpayers and the sacrifice in terms of revenue would be less than 4%. Moreover, it is the small

Solution: It may be desirable to fix the threshold atRs50 lakh. The revenue loss will be minimal but ease of doing business will be high

Way forward

Strong political commitment, to implementing the reform, thorough advance preparation, adequate investment in tax administration and taxpayer services,extensive public education programme, support from business community and good timing of reform are the important prerequisites for successful implementation of the GST

Conclusion

It is also importantto note that problems of transitionto a major tax reform are unavoidable and most countriesgothrough this. In this regard, the approach of the GST Council must be commended for being receptive tothe concerns of businesses and in dealing with the glitches in technology

Now, private banks face bad loans heat

Context

Rise of NPAs in private sector banks

What has happened?

Private sector banks registered a 40.8% year-on-year increase in gross non-performing assets as of September 30, 2017, according to latest data released by the Reserve Bank of India (RBI)

  • In comparison, gross NPAs at public sector banks (PSBs) rose by 17% over the corresponding period
  • Industry-wide gross NPAs increased 18.5%

Gross & Net NPA Ratio

  • Banking sector: The gross NPA ratio of the banking sector increased to 10.2% in September, from 9.6% in March, while net NPA ratio rose to 5.7%, from 5.5%
  • Private sector banks: The total net NPA ratio of private sector banks as on September 30, at 2%, is much lower than the 5.7% for PSBs

Financial Stability Report

In its Financial Stability Report released on Thursday, the RBI said

  • Under the baseline macro scenario, the GNPA ratio may increase to 10.8% by March 2018 and further to 11.1% by September 2018
  • The ongoing deleveraging in the heavily indebted parts of the corporate sector and muted credit growth in public sector banks pose a risk to growth. Subdued credit, which may also be a consequence of thin capital buffers of PSBs, leads to lower investments in the economy
  • Credit growth in major sectors as well as industries has witnessed a decline over the past two years
  • Silver lining: The number and cost of stalled projects reported in the second quarter of the current fiscal had declined from the first quarter
  • The positive signals of improvement – the decline in number and cost of stalled projects, the efforts to improve the quality of government expenditure, ease of doing business ranking, sovereign rating upgrade by Moody’s and the bank recapitalisation announcement are expected to provide a significant fillip to investment sentiment in the coming quarter
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