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- Sci-Hub case: How scientific publishing works?
- Importance and steps for ‘Free, fair and safe’ elections amid pandemic
- Right to restitution for victims of crime
GS Paper – 3
- EU’s new draft digital-services laws against dominance of big tech players
- India lost Retrospective taxation case to Cairn
- Farm laws and Importance of parliamentary process in India
9 PM for Preliminary examination
GS Paper – 2
Source: The Hindu
GS-2: Education related issues.
Synopsis: The recent case of Sci-hub filed by 3 scientific publishers in Delhi HC has highlighted the issues in scientific publishing. To under these issues, first we need to understand, how scientific publishing works.
What is the case?
- Recently, three scientific publishers’ companies such as Elsevier, Wiley, and the American Chemical Society (ACS) have filed a lawsuit against Sci-Hub owner Alexandra Elbakyan of Kazakhstan and others in the Delhi High Court.
- The publishers want Indians to be blocked from accessing the site called Sci-Hub, started by Ms. Elbakyan in 2011.
- To understand why the publishers wanted to block sci-Hub we need to understand the process of Scientific publishing in India and how Sci-hub changed this.
How scientific publishing works and how they are making profits?
- Scientists are usually paid by their institutions and their research grants come from various organizations. For example, in India Department of Biotechnology, the Council of Scientific and Industrial Research, and the Department of Atomic Energy are the major funding agencies.
- When Scientists complete their research paper, they tend to publish it in an academic journal run by publishers such as Elsevier, Wiley, and ACS.
- Before publishing, the journal seeks peer review of the paper but neither the authors nor the reviewer is paid, but they charge libraries and Indian Institutions a sky-high amount for their subscription.
- For example, it is estimated that about ₹1,500 crore is paid for India annually.
- Moreover, sometimes journals require authors to transfer copyright to them. This process has been generating huge profits to these academic publishers.
- Elsevier’s parent company RELX had profits of over 30% on revenue of nearly $10 billion in 2019.
- This has resulted in resentment against these companies and many alternatives have been explored such as open access model, author pays model etc.
How Sci- hub changed this publishing process
- First, Sci-hub operates based on open access and author pays model that enables scientists to search for academic papers from any publisher and freely download them.
- Second, Sci-Hub makes accessible to scientific literature without navigating institutional VPNs.
- Third, due to exorbitant amounts charged by other journals Sci-hub becomes easiest and sometimes only option though it has violated many copyrights owned by journals.
Is Sci-hub beneficial site for India?
- The content on Sci-Hub is beneficial to the scientific development of the country. For example, in 2020, when leading publishers made COVID-19-related articles free to read it resulted in a boom in research and development of dozens of vaccine candidates in a very short time period.
- Unlike, piracy in music and arts the Sci- hub piracy benefits the very people who create that content.
What is the way forward?
- Publishers should voluntarily reform their policies so that there will not be any need for platforms like Sci-Hub.
- Implementation of ‘one nation, one subscription’ system whereby, the entire content will be made available to all readers in India in exchange for a fixed and reasonable cost paid directly by the government.
Elsevier, Wiley, and ACS instead of escalating the Sci-hub issue, should work towards an equitable system of access to scientific literature that serves both their commercial interests and the Indian public.
Source: The Hindu
Gs2: Functions and Responsibilities of various Constitutional Bodies-Election Commission
Synopsis: EC should ensure ‘Free, fair and safe’ upcoming elections in the states of Kerala, Tamilnadu, West Bengal, Assam and Pondicherry (UT).
- Since the pandemic broken, Millions of people have exercised their political right to vote in more than 34 countries, including India (In Bihar).
- With the reappearance of a variant of covid virus in countries like Britain, human beings exposing themselves to the risk of getting and spreading infection through this exercise of franchise is immense.
- So, it becomes crucial that when elections are announced ECI should pay equal attention to both the election (democratic process) as well as the constitutional rights “right to life” as enshrined in Article 21 and “right to lead a healthy life” as held by SC in Sunil Batra vs. Delhi Administration.
- But as a life with liberty will be pure theory if a person’s life itself is placed in danger. Thus, there is a need for taking additional measures while announcing elections.
What are the precautions that needs to be taken while conducting elections in these states?
As the upcoming elections in Kerala (140 seats), Tamil Nadu (234), Puducherry (30), West Bengal (294) and Assam (126) are scheduled in the coming months. Following steps should be taken to ensure the people’s right to health life;
- First, the senior citizens who are more vulnerable to infections should be enabled to vote in the first three hours of the voting using a separate queue-lane.
- Second, Personnel scheduled to be drafted for election duty including security staffs needs to be identified as a priority category for getting vaccinated.
- Third, every voter entering a booth must be asked to wear mask like the mandatory requirement of Voter Identity card.
- Fourth, ECI needs to repeat the precautions that were taken during Bihar elections such as reducing the numbers of voters per booth, increasing the number of booths, thermal testing each voter and making postal votes available to senior voters above the age of 80.
Commitment to political freedom and a compliance with pandemic mitigation measures are an unavoidable contradiction It is the constitutional duty of the state to protect and reduce the risks of pandemic hazard to as near zero as possible while allowing citizens towards their constitutional entitlement of universal adult franchise. Elections during the pandemic must be made safe from the virus to protect the Democracy.
Source: Click Here
Synopsis: The Delhi High Court has secured the right to restitution for victims of crime, in a landmark judgment in Karan v. State N.C.T. of Delhi.
Why this judgment is important
- Restitution involves ordering the accused to compensate victims of crime for their losses.
- Section 357 of the CrPC allows courts to order the accused to pay “compensation” to the victim but it was hardly followed. SC also observed in many cases that Section 357 must be used liberally.
- In 2013, Ankush Shivaji Gaikwad v. State of Maharashtra, the SC made it mandatory for lower courts to record reasons for passing, or not passing, orders relating to the use of Section 357.
- Still, lower courts are largely failed in implementation, mainly due to practical constraints faced by them.
What were the constraints found by lower courts while applying section 357?
- First, Language of section 357: courts were limited by the language of Section 357. For instance, the language of Section 357 does not differentiate between restitution and compensation.
- Restitution includes return made by the offender while compensation is paid by the state. Unless this difference is statutorily recognised, opacity is bound to continue.
- Second, no uniform head: the courts were restricted by the absence of a uniform head under which compensation could be granted.
- Third, no mechanism for calculating paying capacity: the absence of a uniform mechanism to calculate the paying capacity of the accused as well as determining the impact of the crime on the victim prevented courts from granting compensation under the section.
- Fourth, no guidelines: the absence of sentencing guidelines blocked the application of the section.
What is the significance of Delhi High Court’s verdict?
The significance of the Karan verdict lies in the Delhi High Court’s use of the Victim Impact Report (VIR) to determine the quantum of compensation. The Court’s version of VIR is loosely based on the concept of Victim Impact Statements (VIS), but with some differences.
- VIS is an instrument of victim participation, which effectively allows victims to inform the court in their own words as to how the crime impacted them.
- The VIS’s format comprises the description of physical injury, emotional harm, or the damage or loss to property as a result of the offence.
- VIS provides victims with the opportunity to directly address the court and works towards their concerns being heard and addressed by the court.
- It makes the offender realise the impact of the crime on the victim. It also works to aid the court in determining the amount of the sentence and fine.
The Delhi HCs conception of VIR differs from a traditional VIS:
- Firstly, the primary purpose of the VIR in the Court’s idea is to act as an aid to determine the amount of compensation to the victim in combination with the paying capacity of the accused.
- Secondly, the VIR will not be directly made by the victim before the court but will be filed by the Delhi State Legal Services Authority (DLSA), which shall conduct a summary inquiry to establish the impact of the crime upon the victim.
- Third, the DLSA shall submit a report that estimates the paying capacity of the accused as well as the impact on the victim, after a conviction.
- Fourth, the courts will have to pass an order of compensation based on this. The scheme is binding on all lower courts in Delhi that deal with criminal cases.
- Moreover, VIR/VIS should not remain limited to calculating restitution; it must be used in the sentencing process. The courts should come forward to adopt VIR/VIS as one of the best practices in the interest of justice to victims of crime.
GS Paper –3
Syllabus- GS 3
Synopsis: In a 2nd setback after Vodafone case, Indian government has lost an International arbitration case to energy giant Cairn, on the issue of retrospective taxation.
- The Indian government has lost an international arbitration case to energy giant Cairn Plc over the retrospective levy of taxes, and has been asked to pay damages worth RS. 8000 crore to the UK firm.
- This is the second setback for Indian government related to retrospective taxation after it lost the arbitration case against Vodafone.
What is retrospective taxation?
Retrospective taxation allows a country to pass a rule on taxing certain products, items or services and deals and charge companies from a time behind the date on which the law is passed.
- Countries use this route to correct any anomalies in their taxation policies that have, in the past, allowed companies to take advantage of such loopholes.
Apart from India, many countries including the USA, the UK, the Netherlands, Canada, Belgium, Australia and Italy have retrospectively taxed companies.
What is the case?
The case pertains to the tax demand related to an alleged Rs24,500 crore worth capital gains it made in 2006 while transferring all its shares of Cairn India Holdings to a new company, Cairn India, and got it listed on the stock exchanges.
However, Cairn argued the retroactive application of a newly enacted law is a breach by India of its obligations under the Treaty [UK-India Bilateral Investment Treaty] to treat Cairn and its investments fairly and equitably and refrain from unlawfully expropriating Cairn’s assets.
- Owing to different interpretations of capital gains, the company refused to pay the tax.
- This prompted cases being filed at the Income Tax Appellate Tribunal (ITAT) and the High Court.
What is the verdict of Court?
The Permanent Court of Arbitration at The Hague has maintained that the Cairn tax issue is not a tax dispute but a tax-related investment dispute and, hence, it falls under its jurisdiction.
- India’s demand in past taxes, it said, was in breach of fair treatment under the UK-India Bilateral Investment Treaty.
- The GOI was ordered to compensate for the total harm suffered together with interest and cost of arbitration.
The order does not contain a provision for challenge or appeal. Moreover, Cairn can use the arbitration award to approach courts in countries such as the UK to seize any property owned by India overseas to recover the money if the award is not honored.
Government needs to assured global investors that concerns over retrospective taxation would be taken care of.
Source- The Indian Express
Syllabus- GS 3 – Challenges to internal security through communication networks, role of media and social networking sites in internal security challenges, basics of cyber security; money-laundering and its prevention.
The European Commission, the executive arm of the EU, recently presented two new draft digital-services laws that will affect how Big Tech operates.
What are the new EU regulation laws?
- Digital Service Act– The focus of the Act is to create a single set of rules for the EU to keep users safe online, protect their freedom of expression and help both them and local authorities hold tech companies to account.
- The Act introduces a sliding scale, under which the larger and more influential a firm becomes, more obligations they need to take on.
- The tech companies could also face annual scrutiny of European Commission on illegal and harmful content and restriction on the use of user’s data and promotion of their own services over competitors’.
- They could face fines of up to 6% of a firm’s annual turnover or their break-ups for non-compliance.
2. Digital Market Act – Aimed at ensuring fair and open digital market. The act centres on the regulation of “gatekeepers” i.e., operators of search engines, social networks, and chat apps.
- This covers the operators of search engines, social networks, chat apps, cloud computing services and operating systems, among others.
Why US probing big tech companies?
There were allegations and concerns that big tech companies have exploited, entrenched and expanded their power over digital markets in anti-competitive and abusive ways.
- For instance- Recently, Texas and nine other states sued Google. There are allegations of abuse of its dominance in internet search, advertising and its mobile system, to the detriment of rival content producers.
What are the challenges for the success of new regulatory laws?
- Formulation of EU laws may take years in the process of consultation and enactment.
- EU’s new digital-services laws would only come into force after the end of Brexit transition period.
- Past efforts at antitrust enforcement were sluggish and did little to directly curb technology companies. Microsoft’s antitrust case commenced in 1998, and reached a resolution only in 2004.
- Chances of success of proceedings in US are very slim due to their importance in competing with China and economy of US.
How would it impact India and what are the steps taken by CCI in India?
The impacts of new rules in the E.U., would not be limited to EU only, it could force tech companies to change their practices globally, including in India.
India itself is taking steps to curb the anti-competitive practices. CCI (Competition Commission of India) has increased the scrutiny of these companies and in few cases, actions have been initiated;
- The CCI has initiated a probe against Google for alleged abuse of dominance to force app makers to exclusively use its billing system Google Pay for in-app purchases.
- CCI has been looking into allegations over Google’s alleged practice of creating barriers for firms wanting to use or develop modified versions of Android for smart TVs, such as Amazon Fire TV’s operating system.
- In 2019, CCI held Google guilty of misuse of its dominant position in the mobile Android market for imposing “unfair conditions” on device manufacturers to prevent them from using another operating system.
- In 2018, CCI fined Google for “search bias” and giving “undue” space to its Flights option on its search homepage, over and above other rivals in the market. Later put-on hold by National Company Law Appellate Tribunal.
Free and Fair market is needed to balance the need for innovation and to protect the rights of people & society. There is need to create a safer digital space in which the fundamental rights of all users of digital services are protected
Source: Click Here
Syllabus: GS 2
Synopsis: Recent controversy on recent farm laws highlights the importance of following parliamentary procedure not just in letter but in spirit as well.
There are many benefits attached to the new farm laws for farmers and the economy as well, still, farm bills are facing heavy opposition. This situation could have been avoided by using parliamentary processes properly.
Even though a request for an actual vote was made, 3 bills were passed by Voice vote, without any discussion with the opposition.
What are the benefits attached to farm laws?
There are strong indications that the new law is desirable and will bring in much-needed market reforms in the overregulated farm sector.
- Role of market forces: The benefits of relaxing the non-agricultural sector of the economy in 1991 established that, in the end, market forces cannot be ignored.
- No contrary evidence: There is no contrary evidence that the new proposals will adversely affect farmers in the long run.
- No justification for MSP: There is no justification for a minimum support price regardless of demand and supply.
- For instance, A pharmaceutical company doesn’t need to be assured of a minimum price for essential medicines that it produces, irrespective of whether the quantity produced far exceeds the demand.
- Experience with over-regulation: Under the Essential Commodities Act, 1955, several control orders were passed on products such as cement and steel, and these were planned to ensure their availability at fair prices.
- The result was just the opposite: Severe shortages, a huge black market and massive corruption.
How the parliamentary process is being neglected?
- Even though a request for an actual vote was made, 3 bills were passed by Voice vote, without any discussion with the opposition.
- Participation of opposition: though government has a clear majority in Parliament, the Opposition is also a part of parliament. Its involvement is necessary for parliamentary procedures.
- laws are supposed to represent the “wisdom of the legislature” that involves a careful examination of their provision by select committee and members. But In fact, fewer and fewer bills are being referred to as Select Committees.
- While 71 percent of the bills were referred to a Select Committee in the 15th Lok Sabha (2009-14), only 25 percent were so referred in the 16th Lok Sabha (2014-19).
Significance of Parliamentary Process
Parliament is at the heart of a constitutional democracy based on the Westminster model and following parliamentary procedures builds trust among the different stakeholders, other than the following benefits.
- Expertise of Select Committee: Referring the bills to a Select Committee provides assurance of scrutiny to citizens and serves the following purposes:
- A detailed deliberation on the Bill, It remains aloof from the sometimes, surcharged atmosphere prevailing in both Houses of Parliament.
- The Select Committee can, and often does, get the views of experts on the impact, particularly economic, of a proposed law.
- Preserves Constitutional morality: As per Dr. B.R.Ambedkar, the essence of constitutional morality is respect and adherence to constitutional conventions.
- Tackle the vested interests: Following constitutional conventions always pays dividends. It benefits the nation and preserves the dignity of Parliament.
- The delay that arises by following parliamentary procedures acts as a proof that the new law is apt and those opposing it have placed their short-term vested interests ahead of the national interest.
What are the steps should be taken?
- The best way to demonstrate the beneficial effects of the laws is to implement them in select states or districts for a year, before countrywide implementation.
- It is worthwhile considering the implementation of a controversial law on a trial basis. The feedback can finally prove whether the new law can achieve its objects and is beneficial to the nation.
- It can also reveal flaws in the new law. For instance, if GST had been implemented on a trial basis for select products, it would have revealed the serious technological deficiencies and the nation would have benefitted by delaying its implementation.