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Four years after a landmark verdict, it is time to push for reforms to give transgender persons their rights
A landmark judgement towards gender equality: National Legal Services Authority v. Union of India (2014
National Legal Services Authority v. Union of India is a landmark decision by the Supreme Court of India, which declared transgender people to be a ‘third gender’, affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to transgender people, and gave them the right to self-identification of their gender as male, female or third-gender
Questions raised by the author
With the fourth anniversary of NALSA coming up, it is time we ask whether its promises are being fulfilled? Are there positive changes on the ground?
- Problematic Transgender Persons Bill
The proposed Transgender Persons Bill, 2016 was extremely problematic as it failed to even define transgender persons adequately and was rejected by the trans community.
- Changing legal identity an uphill task
Getting their changed names and gender markers in their birth certificates, educational certificates, PAN cards, passports and identity documents is an uphill battle with no norms or guidelines laid down for such change of legal identity.
- No change allowed without medical certificates
While NALSA mandates the right to identify one’s gender even without medical intervention, government authorities do not allow change of name and gender identity unless medical certificates show that the person has undergone sex reassignment surgery, thus completely nullifying what the Supreme Court aimed to protect
- No reservation in education or employment
- There are no schemes for reservation of transgender/intersex persons in educational institutions and public employment
- They are not included in any of the reserved categories, making education and public employment out of bounds for them due to their transgender and gender non-conforming status
- No gender neutral public utilities
Even within schools, universities and public institutions there are no gender neutral public toilets.
What needs to be done?
- We need a Gender Identity Law, which would provide for a person to change name and gender, and take inspiration from Argentina, which introduced a law based on self-determination and provides full recognition of a person’s self-defined gender identity
The list of legal reforms that are needed to truly capture the letter and spirit of NALSA is long. The Supreme Court has been constantly reiterating its stand on transgender rights, and it is time that governments work towards the realisation of these rights.
The Finance Commission must respect principles of equity and fairness in allocating resources between Centre, States
Vital for unity
- The Centre’s capacity to mobilise resources is far greater than that of the States, but the States are required to undertake development expenditures that far exceed their revenue generating capabilities
- GST and demonetisation: States have received a double blow in the form of demonetisation and the Goods and Services Tax (GST). The freedom of States to raise resources has been restricted by the introduction of the GST. They now have hardly any major tax left with them to make a difference to State resources.
- Using the population data of 2011 as the base for tax devolution should not reduce the allocation of resources to States that have successfully reduced their rate of population growth
- These States have incurred huge fiscal costs in order to achieve a lower population growth and healthy demographic indicators
- They have made substantial investments on education, health and directly on family welfare programmes.
- Bringing down the rate of growth of population does not mean less expenditure for States
- On the contrary, it creates new commitments by the States to those in the labour force and to senior citizens.
Fiscal Consolidation not the task of the FC
It is not the task of a Finance Commission to recommend “road maps for fiscal management” or to impose its perception of what policies are good for the people of the States. That is for democratically elected State governments to decide.
To discontinue post-tax devolution of revenue deficit grants would go against the principle of cooperative federalism
Shouldn’t take residual approach
- The Finance Commission should not take a “residual approach” to the question of vertical devolution
- The approach should not be that of distributing what is left over after providing for the requirements of the Centre
Attempt to micro manage
- The terms of reference are unprecedented in asking the 15th Finance Commission to consider proposing performance-based incentives beyond those relating to fiscal responsibility, population and devolution to local bodies
- This reflects the viewpoint and ideological inclinations of the Central government and is an attempt to micro-manage the fiscal domain of the State governments.
Attack on the federal structure
- For the Finance Commission to propose “measurable performance-based-incentives” is nothing short of an attack on the federal structure mandated by the Constitution
- It is not the duty of the Finance Commission to venture into the realm of day-to-day governance
Not for the Finance Commission to declare this or that policy as “populist
The elected governments of States will decide what policies are appropriate for our people.
- Any measure, from welfare pensions for the poor and weaker sections of the society to food assistance, can be termed as “populist” and recommended to be curtailed
- This strikes at the root of a democratic polity in which State governments are free to implement welfare measures, albeit within conditions of fiscal responsibility.
No squeeze of the fiscal space available to the Union government
It is not correct that the fiscal space available to the Centre has shrunk following the 14th Finance Commission recommendations
Argument: The argument today that an increase in devolution from 32% to 42% led to a reduction of the fiscal space available to the Union government is not borne out by the evidence
What happened? : In practice, when implementing the award of the 14th Finance Commission, the Union government cut allocations to several Centrally Sponsored Schemes in 2015-16. The cutback was almost equal to the amount received by the States as a whole on account of the rise in share of taxes and duties.
The Finance Commission must facilitate diversity and a democratic path of development by respecting principles of equity and fairness in allocating resources between the Centre and States in India.
What has happened?
The Centre told the Delhi High Court on Wednesday that it has advised the Haj Committee of India to examine the “sensitive” provision that bars differently-abled persons from applying for the Haj pilgrimage
New Haj policy
- According to the petition, the new Haj policy, issued in November last year, debars “persons suffering from polio, tuberculosis, congestive and respiratory ailment, acute coronary insufficiency, coronary thrombosis, mental disorder, infectious leprosy, AIDS or any other communicable disability or handicap” from applying for the pilgrimage.
- The petition said the new policy is against the various provisions of the Rights of Persons with Disabilities Act, the Mental Health Act, and the National Mental Health Policy, which has equality and non-discrimination as its guiding principles.
- It is as per prevailing practice for more than 30 years, persons suffering from physical disabilities or suffering from specified diseases have been debarred from applying for Haj pilgrimage through the Haj Committee
- There is fear of stampede or mishaps. And in such gruelling situation, it is only the pilgrims with physical disabilities who are likely to suffer the most
Centre has asked for this to be reviewed in terms of the Rights of Persons with Disabilities Act, 2016 so that necessary amendments can be made in the Haj policy
What has happened?
A Supreme Court Bench led by Chief Justice Dipak Misra on Wednesday declared the Chief Justice of India as an “institution in himself” with “exclusive prerogative” to constitute Benches and allocate cases
There is no room for any “presumption of mistrust” against the high constitutional functionary, who helms the country’s most powerful court
This is the second time that the Supreme Court has, within six months, reiterated the Chief Justice of India’s “exclusive duty and authority” as ‘master of roster’ to constitute Benches and allocate cases
No mention of the press conference
The fears expressed in the press conference find no mention in Wednesday’s judgment
What has happened?
Sporadic hatching of olive ridley eggs has started at the mass nesting site at Rushikulya rookery coast in Ganjam district of Odisha
Bit of a delay
- It was expected that mass hatching of eggs will start on the night of April 7 or 8
- But it was delayed due to summer drizzles during the past few days which lengthened the incubation period from the usual 45 days
- Buried under the sand, the eggs use ambient heat of the beach for incubation
- Rainfall reduced the temperature of the eggs in the nests
- As mass hatching is again expected to start in the next few days, the forest department has begun the process to document the phenomenon by opening a centre at Gokhakuda
- CCTVs have been installed to check human intervention during the hatching process.
Cabinet move will expedite decision-making process relating to HELP
What has happened?
The Union Cabinet on Wednesday approved a proposal to delegate the power to award hydrocarbon blocks to successful bidders under the Hydrocarbon Exploration and Licensing Policy (HELP) to Petroleum and and Finance Ministers
Under HELP, blocks are to be awarded twice in a year. Delegating powers would expedite the decision-making process in awarding the blocks, according to the statement
Coal India and subsidiaries can extract coal bed methane
Cabinet Committee on Economic Affairs approved the issuance of a notification that would allow Coal India Limited (CIL) and its subsidiaries to extract coal bed methane (CBM) in their coal bearing areas without applying for a licence or lease under the Petroleum & Natural Gas Rules, 1959.
Cryptocurrencies have witnessed a massive fall in prices since they hit a peak in December last year. Bitcoin, by far the most popular cryptocurrency on the planet, is currently trading below $7,000 as compared to its peak price of over $19,000 — a loss of two-thirds of its value from the peak.
How have crypto-currencies fared in 2018?
- Steep fall in prices
- Other cryptocurrencies have witnessed a similar steep fall in their prices over the last quarter as investors have pulled out of the market
- Remarkably, the present crash follows a year of extraordinary returns when cryptocurrencies saw their prices rise multifold owing to investors’ expectations over their future prospects.
What’s behind the crash?
To sceptics, the crash now will likely vindicate a belief that markets eventually mark down the prices of assets that have no real value, to zero
- Cryptocurrency enthusiasts, view the crash as just another healthy correction that is part of any asset’s rise over the long run. In fact, they point to similar steep crashes in the price of cryptocurrencies in the past that turned out to be short-lived
- Thus they see the present crash as a good chance to buy cryptocurrencies cheaply before their prices begin to rise again.
What’s the future of cryptocurrencies?
- Trapped in a downtrend: Technically, cryptocurrencies are still trapped in a downtrend which began in mid-December amid increasing fears of a regulatory crackdown by governments
- Downtrend might come to an end or not: Though unlikely, this downtrend may come to an end if investor sentiments suddenly change in favour of cryptocurrencies once again
No acceptance as a currency
- None of the cryptocurrencies, has yet proved its fundamental value as a currency that will be readily accepted by a huge population as a medium of exchange.
- This is in contrast to national currencies such as the U.S. dollar which are widely accepted by people as money
Threat to sovereignty
Governments across the world have also not been too keen on allowing cryptocurrencies to be used as alternative money as they view private currencies as a threat to their sovereignty
So cryptocurrencies, in essence, continue to be viewed as a gamble by most.
The recent spate of peasant protests across wide swathes of the country points sharply to the unjust folly and sheer unviability of the path of development that India has embraced, especially in the reform era since the late 1980s
- Widening inequities between city dwellers and small, marginal farmers are glaring in today’s India. 1% of India’s rich own as much wealth as 70% of its population, and the gap is steadily rising
- Agriculture is never a talking point in mainstream media. Farming as an occupation is seen as a thing of the past
- There is a fallacious assumption that India is pre-destined to follow the path of industrialization that the Western world and East Asia have taken. The once-implicit and now explicitly stated goal is to ensure that only a tiny fraction of India’s work force remains in agriculture
In a generation, India’s population is likely to be around 1.6 billion leading to problems of its own like,
- Job creation: Even if just two-thirds of this population is to find its livelihood outside the villages (a modest version of every Finance Minister’s dream), 1 billion people will be living in cities, compared to the present 400 million. This would mean that some 200 million more jobs will have to be created in the next quarter century, at the rate of 8 million new jobs every year. In recent years of the reform era, the net rate of job generation in the organised sector, relying on the government’s own data, is under 0.5 million per year
- Infrastructure: Cities will be required to provide an enormous infrastructure — of clean air and water, sanitation and power, roads and communication, housing and social security — for some 600 million more people
- Feeding the population: A generation without the knowledge of manual agriculture will have far reaching implications on food security because a fully mechanized agriculture in India will pose a huge demand on the world’s remaining oil and coal reserves. This would imply a drain on forex reserves of India
Alternatives do exist, practised and conceived of at hundreds of sites in India:
- The achievement of complete food security by Dalit women farmers of Deccan Development Society and small peasants of Timbaktu Collective in Andhra-Telangana (both in dryland conditions)
- The generation of decent livelihoods through crafts, small-scale manufacturing, community-based tourism, traditional health services by Jharcraft, Kudumbashree, Maati, Khamir, SRUJAN, Qasab, and others
These initiatives have stayed or even reversed rural-urban migration, created rural prosperity, attempted gender and caste justice, without trashing the environment
The Unique Identification Authority of India (UIDAI) has told the Supreme Court that Aadhaar linkage seeks to protect people from crime
Petitioners’ arguments & center’s responses
- Petitioners argued that insistence on Aadhaar for all stigmatises people. It creates a feeling among the public that all are under the government’s scanner for financial fraud, terrorism and tax evasion
- Center’s response: When a measure is uniformly applied, it does not mean that everyone is guilty. Administrative measures do not mean individualized suspicion. There is no presumption of guilt on everyone
- Aadhar is intrusive and why the public should be subjected to such intrusion of their privacy only to prevent any chances of tax evasion
- Center’s response: When tax evasions amount to Rs. 33,000 crore, it is a serious problem which Aadhaar linkage may curb. Provisions like Section 139AA of the Income Tax Act, which mandates the linking of Aadhaar with PAN, is an effort to “bridge the growing gap between the rich and the poor
Ninety-nine per cent of MGNREGA wages have remained unpaid in April 2018, as per the findings of the NREGA Sangharsh Morcha that tracks the implementation of the rural employment guarantee law
What has happened?
NREGA Sangharsh Morcha in its release has brought out the delay in wage payments to workers under MGNREGA
- The Centre introduced the National Electronic Fund Management System in January 2016 purportedly to streamline the process of MGNREGA payments but the system has only tightened the (Rural Development) Ministry’s leash over funds
- In NEFMS, States are no longer able to make payments to workers from their revolving funds to tide over delays in release of funds by the Ministry
- Ninety-nine per cent of the Fund Transfer Orders for MGNREGA wage payments sent to the Public Finance Management in April 2018 remain unprocessed