IBC Amendment Ordinance 2021 Allows “Pre-Pack Insolvency Resolution”
What is the news? The President of India promulgates the IBC Amendment Ordinance 2021. It allows the use of Pre-Pack insolvency resolution.
About Insolvency and Bankruptcy Code (Amendment) Ordinance, 2021:
- IBC Amendment Ordinance 2021 amends the Insolvency and Bankruptcy Code, 2016.
- The Amendment allows the use of Pre-Packaged insolvency resolution as an alternative resolution mechanism for MSMEs. The threshold limit to trigger the Pre-Packaged insolvency resolution is between Rs 10 lakh to 1 Crore.
What is Pre-Pack insolvency resolution?
- A pre-pack resolution is a form of restructuring that allows creditors and debtors to work on an informal plan and then submit it for approval.
- Under this system, financial creditors will agree to the terms of a potential investor. Further, they will seek approval of the resolution plan from the National Company Law Tribunal (NCLT).
- However, the resolution plan cannot be submitted directly to NCLT. It requires approval of a minimum of 66% of financial creditors that are unrelated to the corporate debtor before submission of a resolution plan.
- Further, NCLTs also require to consider any application for a pre-pack insolvency proceeding before considering a Corporate Insolvency Resolution Process(CIRP).
- CIRP is the process of resolving corporate insolvency according to the provisions of the Insolvency and Bankruptcy Code, 2016.
Benefits of Pre-Packs over CIRP:
- One of the key criticisms of the CIRP is the time taken for resolution. At the end of December 2020, over 86% of the ongoing insolvency resolution proceedings crossed the 270-day threshold.
- In contrast, the pre-pack resolution process is limited to a maximum of 120 days. Further, only 90 days are available to the stakeholders to bring the resolution plan to the NCLT.
- Another key difference between pre-packs and CIRP is that the existing management retains control in the case of pre-packs. Whereas a resolution professional takes control of the debtor as a representative of financial creditors in the case of CIRP.
Source: Indian Express
Promulgation of “Tribunals Reforms Ordinance 2021”
What is the News? President of India promulgated Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance 2021.
About the Tribunals Reforms Ordinance 2021:
Purpose of the Ordinance:
- It dissolves at least eight existing appellate tribunals. Now, High Courts and certain other bodies will be the appellate bodies under 9 acts.
- Further, it also amends the Finance Act 2017.
Key Provisions of the Tribunals Reforms Ordinance :
Nine Laws: The above-mentioned nine laws where the existing appellate authorities have been replaced are:
- The Cinematograph Act, 1952.
- The Trade Marks Act, 1999.
- The Copyright Act, 1957.
- The Customs Act, 1962.
- The Patents Act, 1970.
- The Airports Authority of India Act, 1994.
- The Control of National Highways (Land and Traffic) Act, 2002.
- The Geographical Indications of Goods (Registration and Protection) Act, 1999.
- Protection of Plant Varieties and Farmers Rights Act,2001.
Amendment to Finance Act,2017:
- The ordinance empowers the Central Government to make rules for qualifications, appointment, term of office, salaries and allowances, resignation, removal and other terms and conditions of service of Members of Tribunals.
- Search-cum-Selection Committee: It also provides that the central government will appoint the Chairperson and Members of the Tribunals on the recommendation of a Search-cum-Selection Committee.
- Composition: The Committee will consist of:
- Chief Justice of India or a Supreme Court Judge nominated by him, as the Chairperson (with casting vote),
- Secretaries nominated by the central government,
- The sitting or outgoing Chairperson, or a retired Supreme Court Judge, or a retired Chief Justice of a High Court.
- The Secretary of the Ministry under which the Tribunal is constituted (with no voting right).
- Tenure: Now, The tenure of Chairperson of a Tribunal is for a term of four years or till the age of 70, whichever is earlier. Members of a tribunal will also have a tenure of four years or until they turn 67.
- Tribunal is a quasi-judicial institution that was set up to deal with problems such as resolving administrative or tax-related disputes.
- For this purpose, Tribunals were added to the Constitution by Constitution (Forty-second Amendment) Act, 1976 as Part XIV-A which has only two articles:
- Article 323-A deals with Administrative Tribunals.
- Article 323-B deals with tribunals for other matters.
Source: The Hindu
Right To Education Act still has some arbitrariness
Synopsis: The Right To Education Act evolved so much in the past. But there is still some arbitrariness in the RTE Act.
Right to Free and Compulsory Education Act or RTE Act is a horizontally enforceable Fundamental Right. That is, the Right is enforceable against the State and Individuals.
But the Right To Education Act have some arbitrary discrimination against private institutions and favours minority educational institutions.
Evolution of Right To Education as a Fundamental Right:
Earlier, Article 45 mentions the right to education as a part of the Directive Principles. It mentions that the state should provide free and compulsory education to children up to the age of 14. The provision also mentions a timeline for this achievement(within a decade).
Mohini Jain v. State of Karnataka case 1992: In this case, the Supreme Court held that the Right to education is a part of the right to life recognised in Article 21.
Unnikrishnan JP v. State of Andhra Pradesh case 1993: In this case, the Supreme Court held that the state was duty-bound to provide education to children up to the age of 14. Further, the SC also mentions that the state alone cannot fulfil the task. Private educational institutions, including minority institutions, have to assist the State in that.
86th constitutional amendment of 2002:The government provided a status of a fundamental right to the right to education. The government inserted Article 21A into the constitution.
Evolution of Right To Education Act:
P A Inamdar vs State of Maharastra 2005 case: In this case, the court held that there shall be no reservation in private institutions, minority and non-minority institutions.
93rd constitutional amendment of 2005: This amendment included Clause(5) to Article 15. Under this, the State can provide for admission in institutions, including private institutions for the advancement of “backward” classes. This purposefully omitted both the aided and unaided minority educational institutions.
In 2009, the government enacted the Right to Free and Compulsory Education Act or RTE Act. The Act provides for 25 per cent reservation in private institutions.
Society for Unaided Private Schools of Rajasthan v. Union of India case. Private schools challenged the 25% percent reservation in the RTE Act. The court, on the other hand, upheld the validity of the legislation. But the court exempted the unaided minority institutions from providing reservation.
The arbitrariness in Right To Education Act:
The amendment to the Right to Education Act 2012: The amendment mentions that the RTE Act will subject to Articles 29 and 30. In other words, It protected the administrative rights of both unaided and aided minority educational institutions.
But in the Pramati Educational Trust vs Union of India case 2014, the court held that the RTE Act is applicable to both non-minority aided and unaided Private schools.
This created an arbitrariness in the Act. This has the following problems in the RTE Act,
- Onus on private unaided schools is higher than the government schools
- Minority institutions both aided and unaided were exempt.
- According to Article 21, there is no discrimination between minority and non-minority institutions. But, the RTE Act has.
- There is no explicable or rational explanation for leaving minority institutions, especially the unaided ones.
Suggestions to improve the Right to Education Act
In the Sobha George v. State of Kerala case, 2016 the court held that the no-detention policy will apply to minority schools also. Further, the court also held that the minority institutions will not subject to the RTE Act. But they are subject to the fundamental rights of the Constitution. The Court demands two fundamental questions on Section 16(no-detention policy).
- Whether the provisions such as Section 16 of RTE are statutory right or Fundamental Right?
- If it is the Fundamental Right, then the minority institutions will not claim the exemption under the Pramati Educational Trust case.
So, the government has to relook the Right to Education Act to fulfil the view of the Sobha George v. State of Kerala case. Until then the Supreme court may overrule its judgement on the Pramati Educational Trust case.
Source: The Indian Express
Health Ministry Releases “National Policy for Rare Diseases 2021”
What is the News?
The caretakers of patients with ‘rare diseases’ are not satisfied with the National Policy for Rare Diseases 2021. The Union Health Ministry recently released the policy.
Rare Diseases: WHO defines a rare disease as a lifelong disease or disorder that often highly weakens an individual. It has a prevalence of 1 or less per 1000 population. Example: Haemophilia, Thalassemia, Sickle cell anaemia, auto-immune diseases among others.
- However, every country has its own definition for rare diseases.
- The US defines rare diseases as a disease or condition that affects fewer than 200,000 patients in the country.
- Likewise, the EU defines rare diseases as life-threatening or chronically debilitating (weakening) condition. It should affect no more than 5 in 10,000 people.
About National Policy For Rare Diseases,2021:
- Aim: The policy aims to lower the incidence and prevalence of rare diseases based on an integrated and comprehensive preventive strategy. The strategy includes awareness generation, counselling programmes, providing affordable Health Care among others.
Key Features of the National Policy For Rare Diseases,2021:
- Categorisation: The policy categorizes rare diseases into three groups:
- Group 1: Disorders amenable to one-time curative treatment;
- Group 2: Diseases requiring long term or lifelong treatment; and
- Group 3: Diseases for which definitive treatment is available, but challenges are to make an optimal patient selection for benefit.
- Government Support:
- The government will provide Financial support of up to Rs. 20 lakh under the Umbrella Scheme of Rashtriya Arogya Nidhi for treatment of those rare diseases listed under Group 1.
- Moreover, Beneficiaries for such financial assistance would not be limited to BPL families. About 40% of the population, eligible under Pradhan Mantri Jan Arogya Yojana, will also be eligible for assistance.
- Further, for group 2, the State Governments can consider supporting specific patients. It includes a rare disease that can be managed with special diets or hormonal supplements or other relatively low-cost interventions (Diseases listed under Group 2).
- Voluntary Crowdfunding: The government has said that it will assist in voluntary crowd-funding for the treatment of Group 3. It is because it will be difficult to fully finance the treatment of high-cost rare diseases of Group 3.
Objections to the Policy:
- The policy offers no support to patients awaiting treatment since the earlier National Policy for Treatment of Rare Diseases 2017 was kept on hold.
- The policy has left patients with Group 3 rare diseases to fend for themselves. It has absolutely no consideration for Group 3 patients who require lifelong treatment support.
Rashtriya Arogya Nidhi scheme:
It provides financial assistance to patients living below the poverty line and who are suffering from major life-threatening diseases, to receive medical treatment.
Source: The Hindu
Medical Termination of Pregnancy Bill, 2020 – Associated Issues
Synopsis – The Medical Termination of Pregnancy Bill 2020 Continues to ignore Pregnant person’s rights.
- Recently, The Medical Termination of Pregnancy Bill 2020 passed in the upper house by voice vote.
- The bill seeks to amend the MTP Act, 1971. It provides for enhancing the upper gestation limit from 20 to 24 weeks for special categories of women but does not specify the category.
- Although the MTP Amendment Bill does expand the gestational cap in some cases, it falls well short of becoming rights-based legislation.
Objections raised in the Upper House
- Lack of consultation with stakeholders.
- Lack of inclusion of transgender people within the MTP framework.
- Moreover, there is a lack of emphasis on women’s autonomy in pregnancy.
- Medical boards would be a breach of privacy. It would cause excessive delays in access to abortion due to a shortage of specialists.
- The time limit for decision-making by the medical board is missing. Moreover, the women’s representation is unclear.
Issues in the proposed Medical Termination of Pregnancy (Amendment) Bill, 2020
- Lack of consultation with civil society and grassroots organizations. This is an example of drafting and enacting laws without consultation with the people who are most affected. The Recent Farm Bill, 2020 is a prime example of this.
- The provision still restricts abortion to a heteronormative framework. Only cisgender women are considered in it, and not persons with other gender identities.
- Under the heteronormative framework, it is a belief that there are only 2 two sexual orientations and genders i.e. male and female.
- Cisgender is the person, who identifies herself with the sex at the time of birth. The person who undergoes gender change is not a cisgender.
- Issues with setting up of Medical Boards – The MPT bill mandates the setup of a Medical Board in every state. The Medical Boards require giving opinions based on the facts regarding the termination of pregnancies.
- This could cause severe delays in the abortion process.
- Pregnant women living in rural areas in large parts of the country could find these Medical Boards inaccessible.
- The bill retains the hetero-patriarchal population control legacy. The bill continues with the lack of control to the women, of their reproductive and sexual rights. Abortion will be subject to doctor approval. This is in direct contrast with the Supreme Court’s precedent on reproductive autonomy and bodily integrity.
- The Bill’s provisions continue to criminalize abortion. It will promote negative stereotypes and stigma surrounding reproduction, sexuality, and motherhood.
Before drafting or enacting legislation, the government must ensure the following:
- Consultation with all stakeholders – Consultations and deliberations with members from civil society and grassroots organizations should be held by the government since they all have an interest in the implementation of such laws based on their personal experiences.
- Women can be responsible for their own choices- The decision to terminate a pregnancy should be granted to the woman, not to doctors or any medical board.
- The paternalistic notion that women need assistance in making decisions about their sexual and reproductive rights needs to change.
Source- The Indian Express
The NCT of Delhi Act, 2021 Enhances Cooperative Federalism
Synopsis: The accusation made on the Government regarding the passage of the Government of the NCT of Delhi Act 2021 is groundless.
Background of the NCT of Delhi Bill
- Last week, both Houses of Parliament voted in favor of the amendments to the Government of the National Capital Territory (NCT) of Delhi Act.
- Many criticized the passage of the bill that the government is undermining the federal structure of the country. Some have equated the passage of the bill as the death of democracy and Federalism.
- But the government mentioned the Bill as a necessary change vital for the following things,
- Ensuring clear-cut roles and responsibilities.
- To remove ambiguities in the governance of the NCT of Delhi
- To facilitate a clear chain of command among stakeholders
Why the accusation against the NCT of Delhi Bill is groundless?
The Evolution of The GNCT of Delhi bill has to be examined carefully to understand the issues against the accusations of the GNCT bill.
- First, the aim of the amendments was to clear the ambiguities in the roles of various stakeholders. Since various court judgments have observed the ambiguities and lack of clarity. The government through the recent amendment brought consistency in the definition of the term “Government”.
- The amendment clearly stated that the term ‘government’ refers to the Lieutenant Governor. By doing this, the government has only formalised the definition of a term that the Delhi Assembly itself had already accepted.
- For example, in 2015 the Legislative Assembly of Delhi passed the Delhi Netaji Subhas University of Technology Bill. It was sent for the President’s assent.
- However, it was returned to the Delhi assembly as it had defined the term “Government” as the “Government of the National Capital Territory of Delhi.
- Later, the Delhi assembly sent a modified version of the Bill for the President’s assent. This time the definition of “government” was described as “Lieutenant Governor of NCT Delhi appointed by the President.”
- Second, the government has proved itself as a torch-bearer of Federalism. For example, the government provided equal opportunities for States in the following events. Such as,
- The creation of NITI Aayog,
- During the establishment of the Goods and Services Tax Council,
- The acceptance of the Fifteenth Finance Commission’s recommendations for greater devolution.
- Third, the amendments will ensure that there is no encroachment in legislative matters in the union’s jurisdiction. NCT Delhi has no legislative competence in matters pertaining to the police, public order, and land. However, the current proposals for providing statehood to Delhi Legislative Assembly involve one major risk. That is the encroachment of the Delhi assembly on these subjects.
- Fourth, Delhi is of unique importance to India. It hosts the Parliament, the seat of the Union Government, Supreme court, Foreign embassies, and other institutions of national importance. In such instances, ensuring the opinion of the Lieutenant Governor can only ensure the smooth functioning of the government.
So, the NCT of Delhi (Amendment) Bill balances the proper functioning of the Delhi Assembly and the cooperative federalism in India.
Source: The Hindu
SC Issues Directions for “Accident Information Report”
What is the News?
The Supreme Court issues directions to police, Motor Accidents Claims Tribunals(MACTs), and insurance companies regarding accident information reports. The aim of the directions is to make the compensation process to victims more smooth and claimant-friendly.
What was the case?
- The Insurance company Bajaj Allianz filed a writ petition in the Supreme Court. The petition raised the issue of the difficulty of accident victims, waiting for years for compensation.
- Bajaj Allianz said that the police take months to even file an accident report for submission before the Motor Accidents Claims Tribunals(MACTs). This is the norm in many parts of the country,
What did the Supreme Court say?
The Supreme Court issued directions to prevent delays in the disbursement of compensations to victims. The police, motor accident claims tribunals and insurers across the country have to uniformly practice these directions:
- Firstly, Accident Information Report: The jurisdictional police station shall report the accident under Section 159 of the Motor Vehicle Act. Further, the police need to send the report of the accident to the tribunal and insurer within the first 48 hours.
- Secondly, Detailed Accident Report: Police shall collect the documents relevant to the accident. This includes documents for computation of compensation and verification of the information and documents. This report shall be emailed to the tribunal and the insurer within three months.
- Thirdly, the tribunal shall issue summons along with the Report or the application for compensation to the insurer by email.
- Fourthly, the insurer shall email their offer for settlement/response to the Report to the tribunal.
- Fifthly, after passing the award, the tribunal shall email an authenticated copy of the award to the insurer.
- Sixthly, the insurer shall satisfy the award by depositing the awarded amount into a bank account maintained by the tribunal by RTGS or NEFT.
Further, the Supreme Court has also ordered the Centre to launch a national online platform. The platform could be operated and accessed across the country for submission of accident reports, claims and responses to claims. This would end the distress felt by victims during accidents that happened in places other than their native State.
Source: The Hindu
Bihar Assembly Passed the “Bihar Special Armed Police Bill 2021”
What is the News?
Bihar State Assembly has passed the Bihar Special Armed Police Bill, 2021.
About Bihar Special Armed Police Bill, 2021
- The mandate of the bill is to maintain public order, combat extremism. Further, the bill ensures better protection and security of specific establishments.
- For this, the Bill proposes setting up a Special Armed Police force. The Special Armed Police will have one or more battalions depending on the requirement for any specified period.
- Nodal Authority: The command, supervision, and administration of the Special Armed Police shall vest in the Director-General of Police, Bihar.
- However, the general superintendence of the Special Police shall be exercised by the Government.
Powers of the Special Armed Police force:
- Firstly, Power to arrest without a warrant: They will have the power to arrest people even without a warrant. This power will be available to any of the Special Armed Police’s officers.
- Secondly, Arrests on suspicion: They have the power to arrest people on the basis of mere suspicion. This includes suspicion like disrupting state government functions or attempting to conceal their presence with the aim to commit a crime or cognizable offence.
- Thirdly, Search without Warrant: They have the power to conduct a search of a suspect’s premises without obtaining a warrant from a magistrate. The only safeguard is that the search can be conducted by an officer of a notified rank or above.
- And Lastly, Immunity from Courts: The bill also grants immunity to the officers of the Special Armed Police. It bars courts from taking cognizance of any complaint against the Special Armed Police. The court can take action only when the state government has sanctioned action against the concerned officers.
Source: Indian Express
MTP Bill 2021 is not progressive enough
Synopsis: The Medical Termination of Pregnancy (Amendment) Bill, 2021 MTP Bill aims to improve women’s reproductive rights. But it will restrict women’s bodily autonomy if implemented.
The Lok Sabha passed the Medical Termination of Pregnancy (Amendment) Bill, 2021. Now the bill is in the Rajya Sabha. The Rajya Sabha has to maintain caution in passing the Bill as it enforces societal prejudices against women.
Important Provisions of the MTP Bill:
The bill is hailed as a much-needed departure from the existing MTP Act, 1971 for two reasons.
- Firstly, the MTP bill replaces “any married woman or her husband” with “any woman or her partner”. This step will facilitate the termination of pregnancy due to contraception failures and destigmatize the pregnancies outside marriage.
- Secondly, the MTP Bill increased the time limit. The Bill increases the pregnancy termination time from the current 20 weeks to 24 weeks. There are two categories for that:
- Termination of Pregnancy from 12 weeks to 20 weeks: Women can terminate the pregnancy after consulting one RMP (registered medical practitioner).
- Termination of Pregnancy from 20 weeks to 24 weeks: Women can terminate the pregnancy after consulting two RMPs.
Challenges with the MTP Bill:
There are a few significant challenges with the MTP bill. They are,
- The problem with the upper limit: The government increased the upper age to 24 weeks(Category 2). But, that does have certain conditions like
- the life of the pregnant woman or pregnancy can cause grave injury to her mental or physical health.
- If the child were born it would suffer from any serious physical or mental abnormality.
But these limitations are not useful when the opinion of the medical board is necessary. So, the medical board can certify any pregnant woman as not having ‘substantial foetal abnormalities’ and force her not to terminate the pregnancy.
- Restricting the bodily autonomy of women: The Bill still enforces the patriarchal setup. The woman alone cannot terminate her pregnancy. She always needs the opinion of one or two RMPs.
- The scientific necessity of the 24-week ceiling: There might be abortions after 24 weeks as well. It could be for the reasons like,
- Development of foetal abnormalities after 24-week
- A sudden change in circumstances (due to separation from or death of a partner), etc.
But the MTP Bill does not cover these points into consideration.
- Reduced access to termination facilities: Pregnant women will also fail to approach termination facilities for having a fear of judgment from medical practitioners.
- Against the Supreme Court judgment: The SC in KS Puttaswamy v Union of India case upheld the women’s constitutional right to make reproductive choices. But the MTP Bill is a clear violation of women’s Fundamental Right to make choices individually.
So, the government has to reconsider the MTP Bill in a holistic manner of women’s development.
Source: The Indian Express
Concerns with the Insurance (Amendment) Bill, 2021
Synopsis:The Insurance (Amendment) Bill, 2021 has few important concerns. But the move is a welcome step to the Insurance sector.
The Lok Sabha has passed the Insurance (Amendment) Bill, 2021. The Bill had earlier been cleared by the Rajya Sabha also. Now it only requires the presidential assent to become a law.
About the Insurance (Amendment) Bill, 2021:
- The Bill amends the Insurance Act,1938. The Bill seeks to increase the maximum foreign investment allowed in an Indian insurance company from 49% to 74%.
- However, such foreign investment may be subject to additional conditions as may be prescribed by the Central Government. The conditions include,
- The majority of directors on the Board and key management persons in health and general insurance companies has to be resident Indians.
- At least 50% of directors of the Insurance companies have to be independent directors.
- The bill also removes restrictions on ownership and control.
Concerns with the Insurance (Amendment) Bill:
There are certain key concerns raised by the critics of the bill. These include,
- The present actual share of FDI in the insurance sector is less than the current limit of 49%. Further, the present target was aimed to achieve within 5 years. But that is not achieved so far. Hence, there is no justification for increasing the limit to 74%.
- Infusion of market funds in the insurance sector is not viable. The critics mention the time when financial institutions like DHFL, Yes Bank have collapsed, infusing market funds might lead to the collapse of insurance institutions also.
- The Bill does not have a provision to prevent financially weak foreign companies from entering into the Indian insurance sector.
- Many Indian insurance companies are already in Joint Venture with foreign companies. Hence, the Government’s claim that foreign investment is needed for bringing newer technology to the country is not substantiated.
Government’s response to the concerns:
- The bill is aimed at solving some long-term capital availability issues in the insurance sector.
- The banking and insurance industry fall under the strategic sectors according to the government’s strategic disinvestment policy. The 74% cap is just a limit posed on the FDI. Hence, there should be no apprehension on privatization.
- The bill will increase competition in the insurance sector. This will in turn facilitate affordable schemes for middle-class people.
- Half of the market share of the Indian insurance sector is already held by private companies. The public sector insurance market share is merely 38.78%. On the other hand, the private sector enjoys 48.03% of the market share. So the increase in FDI is essential to improve the insurance penetration further.
The Insurance (Amendment) Bill might facilitate insurance penetration among middle-class Indians. But the adequate safety mechanisms have to put in place to check the insurance companies.
Source: The Hindu
NCT of Delhi (Amendment) Bill is against the spirit of Federalism.
Synopsis: The Government of NCT of Delhi (Amendment) Bill, 2021 gives more powers to the Lieutenant governor(LG). Further, It is against the principle of representative democracy.
Evolution of The Government of NCT of Delhi (Amendment) act 1991
- India follows Parliamentary democracy with a cabinet form of government. This is a basic structure of the Indian Constitution.
- When the Constitution came into force, there were four kinds of States. (Parts A, B, C and D States)
- The states under C and D were directly administered by centrally appointed Chief Commissioners and Lieutenant Governors. They don’t have any elected Assemblies. Delhi came under Part C.
- But in 1951, a Legislative Assembly was created with an elected Chief Minister for Delhi.
- However, issues of jurisdictions and functional autonomy between the Chief Minister and chief commissioner of Delhi was always present. This led to the resignation of the 1st chief minister in 1955.
- In 1956, following the States Reorganisation Act, only two categories(States and Union Territories) remained in the Indian Union.
- Delhi became a Union Territory. Also, the Legislative Assembly of Delhi was abolished. Then, Delhi was administered by an Administrator appointed by the President.
- In 1966, the Delhi Administration Act 1966 provided a limited representative Government in Delhi. But there were repeated political demands that demanded a full statehood to Delhi.
- To resolve this, the Balakrishnan Committee was set up in 1987. Consequently, the committee made the following recommendations
- Delhi should continue to be a Union Territory.
- But there must be a Legislative Assembly and Council of Ministers responsible with appropriate powers to ensure stability.
- Based on this report, the Constitution (69th) Amendment Act and the Government of National Capital Territory of Delhi (GNCT) Act, 1991 were passed.
- This act provided Delhi with a Legislative Assembly, a Council of Ministers and an elected Chief Minister.
Why Delhi is kept under the control of the Union Government?
- First, our Constitutional makers feared that Delhi will acquire a predominant position compared to other States if Delhi had statehood. So they included Delhi under Part C.
- Second, Delhi is the National capital. So Parliament decided to keep Delhi under Union Government on the basis of national interest.
- Third, to avoid federal disputes and provide for smooth administration in Delhi. For example, If full statehood is provided to Delhi, then two different political parties at the centre and Delhi will result in higher conflicts than the present ones.
Salient provisions of NCT of Delhi (Amendment) Bill:
The NCT of Delhi (Amendment) Bill has few significant provisions. They are,
- The bill reduces the power of representative government. It provides enormous powers to the Lieutenant governor (directly appointed by the centre).
- It makes the opinion of the Lieutenant Governor mandatory for taking any executive action.
Challenges with the NCT of Delhi (Amendment) Bill:
- The Bill is against federalism (basic structure of the constitution). It gives more powers to the centre.
- The bill is against the provisions of representative democracy. It limits the power of the people. On the other hand, it gives more powers to the directly appointed administrators.
- The Bill aims to hand over the accountability of Delhi to an unelected, centrally appointed government functionary.
- The bill also violated the directions given by the Supreme Court. The SC provided a balanced approach. It mentions the LG has to ‘aid and advice’ the matters on which the Delhi Assembly has powers under the State and Concurrent Lists.
The government must reconsider the NCT of Delhi (Amendment) Bill as per the advice of the Supreme Court.
Source: The Hindu
Mines and Minerals Amendment Bill 2021- Explained, Pointwise
The Lok Sabha and Rajya Sabha passed the Mines and Minerals (Development and Regulation) (MMDR) Amendment Bill,2021. The MMDR Bill 2021 seeks to amend the Mines and Minerals (Development and Regulation) Act, 1957. This bill is expected to be the watershed moment in the development of mines and minerals in India. In this article, we will analyze the MMDR Bill 2021.
Types of Mines in India
At present, there are two types of mines in India. They are:
- Captive Mines: Captive industries own these mines. The coal or mineral produced from these mines is for the exclusive use of the owner company of the mines. The company cannot sell coal or mineral outside. Some electricity generation companies used to have captive mines.
For Example, If an iron ore mine is allowed to a captive industry(iron and steel plant). Then that iron and steel plant can use the iron ore only for producing steel for their company. They cannot sell the ore to any outsider.
- Non- Captive Mines: In Non-captive mines, the minerals obtained by a company can be sold in the market.
Note: Specified minerals include minerals other than coal, lignite, and atomic minerals.
About the MMDR Bill 2021
- There are two important Acts that govern the mines and minerals in India. They are,
- The Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act)
- The Coal Mines (Special Provisions) Act, 2015 (CMSP Act).
- The MMDR Act regulates the overall mining sector in India. Further, the MMDR Act empowers the central government to reserve any mine for the particular end-use(Captive mines).
- Similarly, the CMSP Act provides for the auction and allocation of mines.
- The Mines and Minerals (Development and Regulation) (MMDR) Amendment Bill,2021 amends both the MMDR Act and CMSP Act. Further, it aims to provide holistic development of mines and minerals in India.
- An Ordinance with similar MMDR bill provisions was also promulgated in January 2020.
Salient provisions of the MMDR Bill 2021
- Removes distinction between captive and non-captive mines:
- The Bill removes the distinction between captive and non-captive mines. It will not reserve any mine for a particular end-use. All mines will now be able to sell their extra minerals.
- Sale of minerals by captive mines: The MMDR Bill 2021 provides that captive mines (other than atomic minerals) may sell up to 50% of their annual mineral production in the open market after meeting their own needs. But they need to pay the royalty to the central government.
- National Mineral Exploration Trust (NMET): The Bill provides for the constitution of a Statutory body named the National Mineral Exploration Trust (NMET). It will see the overall functioning of the mining sector.
- National Mineral Index(NMI): The Bill proposes to introduce an index-based mechanism by developing a National Mineral Index(NMI). Various statutory payments and future auctions can use the National Mineral Index in the future.
- Transfer of statutory clearances:
- Presently, an auction is conducted to determine the fresh mining leases after the expiration of a mineral lease.
- The auctioned person(new lessee) needs to obtain statutory clearances before starting mining operations.
- The MMDR Bill 2021 changes this provision. It makes the transferred statutory clearances valid throughout the lease period of the new lessee.
- Auction by the central government in certain cases: The Bill provides that if the State Government is not able to complete the auction process within a specified time, the Central Government may take over and conduct such an auction.
Concerns with the MMDR Bill 2021
- The bill is seen by various state governments as the restriction of their revenue generation and indulgence of the central government in the State mineral policy. The reasons are,
- Fixing the royalty to States: The bill mentions fixing royalty payments to the states for the mining leases provided to Central PSUs. This might reduce the amount of revenue to the state government.
- Vesting the ultimate power with the Centre: The bill provides for auction by the central government in certain cases. State governments see this as the central government supremacy in the State mining lease policy.
- Centre’s direction to District Mineral Fund(DMF): Under the MMDR Bill 2021, the centre can direct the spending of DMF. The States on the ground have to perform the actions directed by the Centre. States see this as the Centralization of DMF.
District Mineral Fund: The District Mineral Fund is established based on the contribution of major or minor mineral exploring companies in a district. The fund is utilised in the interest of the persons and areas affected by mining-related operations.
- Environment concerns with the MMDR bill 2021: As the mining is liberalised under the MMDR Bill 2021, there are higher chances of degrading the environment, restricting tribal rights, threatening the biodiversity of the area etc.
Advantages of the MMDR Bill 2021
- Exploration of India’s mineral potential: India has the same mineral potential similar to Australia, South Africa. Further, India is producing 95 minerals. But India still imports minerals worth more than Rs. 2.5 lakh crore a year. The MMDR Bill 2021 facilitates to explore better mining of minerals. This will improve the commercial mining capability of India.
- Effective mining and creates huge employment benefits: More exploration of mines will lead to effective and profitable mining in India. Further, the mines and minerals located in the Indian hinterland will create local employment at an enormous level.
- Transparency in the mining process: The MMDR Bill 2021 aims to infuse transparency in the mining sector. Further, it will also reduce the red-tapism as the bill provides for the transfer of statutory clearances, new NMI index etc.
- Variety of benefits: The relaxation of mining restriction on Captive mines and the transfer of statutory clearances have few significant advantages, like,
- More investment into the mining sector: This will facilitate more internal investments, FDI and increase Forex reserves. Apart from that, this will bring more new technology into the mining sector.
- Since the captive mines can sell their minerals commercially to other industries, It will spur the growth of other industries. Further, this will reduce the import of raw materials. This is in line with creating Atmanirbhar Bharat.
- Companies can create additional revenue by selling minerals to other Industries and intermediaries.
- Protect the Environment: Both the Centre and State government should ensure the protection of the environment. Further, the relaxation of mining to the companies should not violate the provisions of the environment. To ensure that, the government have to create a proper and periodic environmental auditing mechanism.
- Creating other safeguards in long run: The implementation of the MMDR Bill 2021 have to monitor closely for enhancing the contribution of the mining sector to 2.5% of Indian GDP(at present it is 1.75%). The implementation of the MMDR Bill 2021 depends upon various organs of the state and private sector. So, the issues in the implementation have to identify and rectified either Judicially or legislatively or administratively or in other ways.
- Creating adequate infrastructure in other sectors: The development of mines and minerals depend on India’s logistical capability, development of ports, railways etc. So to create an adequate export capacity of Mines and minerals, India needs to develop adequate infrastructure in other sectors.
- India needs to reduce the cost of the value addition of minerals: The government has to reduce the losses associated with the value addition of minerals. Or else, India can face challenges in sustaining the industry.
For example, China imports iron ores from India. But due to efficient value addition, China produces steel at a low cost. Further, China also exports them to India and disrupt the domestic steel industry.
Overall the MMDR Bill 2021 might provide a strategic push in the mining sector. Over a period of time, India can fulfil its mineral needs, create employment, ensure the growth of industries, etc. Thus, the proper implementation MMDR Bill will make India a global supplier of minerals to the whole world.
GNCT of Delhi Amendment Bill 2021 and Supreme Court’s Verdict
Synopsis: GNCT of Delhi Amendment Bill 2021 appears to go against the idea of representative government.
The Centre’s Bill is trying to amend the law that relates to the governance of the National Capital Territory of Delhi. The bill claims that its aim is to implement the Supreme Court judgments on Delhi’s governance structure. However, the proposed changes are the very opposite of what the Court has said.
What was the Supreme Court’s 2018 verdict on the matter?
- The Constitution Bench verdict in 2018 stated that the LG (Lieutenant Governor) has not been trusted with any independent decision-making power.
- The LG either has to act on the aid and advice of council ministers. Or, he has to implement the decision of the President on the matters referred to him.
- The ‘aid and advice’ clause applies to the matters on which the Delhi Assembly has powers under the State and Concurrent Lists. This comes with an exception of public order, police, and land.
- Wherever there are differences between the L-G and the elected government, the L-G should refer the question to the President.
- Further, different judgments have clarified that the power to refer “any matter” to the President does not mean “every matter”.
- This bill completely undermines the Court’s efforts. The judgment strengthened the elected government in relation to Lieutenant Governor.
Read more – NCT Amendment Bill
What are the issues with the NCT amendment bill?
The Court wanted to clarify that the power to refer any matter to the President did not mean that every matter should be referred.
- Firstly, the Bill states all references to the government in the bills and orders would mean the LG. It is irrational to declare LG as the government, in the UT with an elected House.
- As per the guiding principle, an elected government should not be undermined by the unelected administrator.
- Secondly, the provision to Article 239AA empowers L-G to refer the matter to the President, in case of difference of opinion. However, this does not mean that the administrator should come up with a different opinion on every government decision.
- However, the bill provides the L-G with an opportunity to refer every matter to the President.
- Third, instead of Parliament identifying the matters on which the L-G’s opinion should be required, the Bill proposes that the L-G himself would specify such matters.
This bill amounts to a rollback of representative government. The Union Territory concept is one of the many ways in which India regulates relations between the Centre and its units. It should not be used to undermine the basis of electoral democracy.
Source: click here
Mines and Minerals (Development and Regulation) (MMDR) Amendment Bill, 2021
What is the News?
The Lok Sabha passes the Mines and Minerals (Development and Regulation) (MMDR) Amendment Bill,2021. The Bill seeks to amend the Mines and Minerals (Development and Regulation) Act, 1957. This act regulates the mining sector in India.
What are the key provisions of the Bill?
- Firstly, removes distinction between captive and non-captive mines:
- The Act empowered the central government to reserve any mine (other than coal, lignite, and atomic minerals) for particular end-use. Such mines are known as captive mines.
- The Bill removes the distinction between captive and non-captive mines. It will not reserve any mine for particular end-use. All mines will now be able to sell their extra minerals.
- Secondly, sale of minerals by captive mines: The Bill provides that captive mines (other than atomic minerals) may sell up to 50% of their annual mineral production in the open market after meeting their own needs.
- Thirdly, National Mineral Exploration Trust (NMET): The bill provides for the constitution of a Statutory body named the National Mineral Exploration Trust (NMET). It will see the functioning of the mining sector.
- Fourthly, National Mineral Index(NMI): The bill proposes to introduce an index-based mechanism by developing a National Mineral Index(NMI). It will be used for various statutory payments and for future auctions.
- Fifthly, transfer of statutory clearances: Presently, upon expiry of mining lease and transfer of the lease to a new lessee, the statutory clearances issued to the previous lessee are transferred for a period of two years. The new lessee needs to obtain fresh clearances within the two years.
- The Bill changes this provision. It makes the transferred statutory clearances valid throughout the lease period of the new lessee.
- Sixthly, inclusion of Private Sector: The bill allows the participation of private players in mining operations with enhanced technology.
- Seventhly, auction by the central government in certain cases: The Bill provides that if the State Government is not able to complete the auction process within a specified time, the Central Government may take over and conduct such an auction.
- Lastly, allocation of mines with expired leases: The Bill says that mines (other than coal, lignite, and atomic minerals) whose lease has expired, may be allocated to a government company in certain cases.
Significance of this bill:
- Firstly, it brings True Potential of Mining Sector: India’s mining sector has the same potential as South Africa and Australia. However, India still needs to import minerals like gold and coal. This bill will bring out the true potential of the mining sector.
- Secondly, it Increases Mining Contribution to GDP: Mining sector right now contributes 1.75% to the country’s GDP. The proposed reforms will raise the contribution to 2.5% as it seeks to make many mines available for auctions by resolving legacy issues.
Source: The Hindu
The Government of NCT of Delhi (Amendment) Bill 2021- Explained, Pointwise
The Government of National Capital Territory of Delhi (Amendment) Bill, 2021 or the NCT of Delhi (Amendment) Bill 2021 got introduced in Lok Sabha. It amends certain provisions related to the distribution of powers and responsibilities among the L-G (Lieutenant Governor) and the Delhi legislative assembly. The issue of power tussle between the L-G and the elected government of Delhi has come into the limelight again. It is because of the introduction of this bill.
Key Provisions related to Delhi
- Delhi’s current status as a Union Territory with a Legislative Assembly is an outcome of the 69th Amendment Act. The act introduced Articles 239AA and 239BB in the Constitution.
- They have created the Union Territory of Delhi with a legislative assembly.
- Further, the administrator appointed under article 239 gets designated as the Lieutenant Governor. There shall be a council of ministers to aid and advise LG.
- Lastly, provisions of public order, police and land are not under the jurisdiction of the Delhi government. The Centre will maintain these provisions.
- Article 239AA(4) mandates that in case of a difference of opinion between the L-G and the Council of Ministers, the L-G has to refer the issue to the President.
- Until the decision is pending before the President, the L-G can use his discretion to take immediate action if urgency requires him/her to take an action.
- The GNCTD Act 1991 got passed to supplement the constitutional provisions relating to the Assembly and the Council of Ministers in the national capital. The act outlines few important provisions such as:
- the powers of the Assembly
- the discretionary powers enjoyed by the L-G
- duties of the Chief Minister with respect to the need to furnish information to the L-G.
Salient features of the NCT of Delhi (Amendment) Bill 2021
The NCT of Delhi (Amendment) Bill mainly aims to amend four clauses of the Government of National Capital Territory of Delhi Act, 1991 (GNCTD Act 1991). They are,
- Section 21 – This section deals with the restrictions on laws passed by the Legislative Assembly concerning certain matters.
- The Bill provides that the term “government” referred to in any law made by the Legislative Assembly will imply Lieutenant Governor (L-G).
- Section 24 – This section deals with assent to Bills passed by the Legislative Assembly. The L-G will reserve the bills for the consideration of the President in a few matters. It includes bills that diminish the powers of the High Court of Delhi, the President directed the L-G to reserve a bill, etc.
- The NCT of Delhi (Amendment) Bill requires the L-G to reserve bills for the President that incidentally cover any of the matters outside the purview of the powers of the Legislative Assembly.
- Section 33- It mentions that the Legislative Assembly will make rules to regulate the procedure and conduct of business in the Assembly.
- The 2021 NCT bill states that such rules must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha.
- Section 44 – It deals with the conduct of business. Accordingly, all executive decisions taken by the elected government should be under the L-G’s name.
- The 2021 bill empowers the L-G to specify his suggestions on certain matters. His opinions has to be taken before making any executive action on decisions of the Minister/ Council of Ministers.
Background of LG and Delhi Government Relationship
- Frequent tussles have been witnessed between the Delhi government and the L-G of Delhi since 2015.
- The primary reason behind it was the lack of clarity over Article 239AA. The proviso of Article 239AA(4) seems to give primacy to the L-G. Using this, the LG was able to undermine the will of the elected government.
- A case also filed on the court about the L-G’s power of discretion. In the
Government of NCT of Delhi v. Union of India case 2018, the Supreme Court defined the limits of L-G’s discretionary powers. The important points of that judgement were,
- L-G is bound by the aid and advice of the council of ministers except in subjects of land, public order and police.
- Executive decisions do not need the concurrence of the Lieutenant General. Further, the court also held that the L-G has no powers to overrule the decisions of the elected government.
- The difference of opinion has to be referred to the president under Article 239AA(4) provision.
- The Lieutenant Governor cannot act mechanically and refer every decision to the president.
- Only genuine cases of public interest can be referred to the President.
- Before referring a bill to the President, the L-G has to consider the principles of collaborative federalism, the concept of constitutional governance, objectivity, etc.
- Executive power rests with the council of ministers of NCT, Delhi. The union government has no overruling powers with respect to the executive powers.
Impact of Supreme Court Verdict on NCT of Delhi
- It established a situation of calm between the Delhi Government and the L-G.
- The Delhi government stopped sending files on executive matters to the L-G before the implementation of decisions. This resulted in swifter decisions like:
- Free bus rides to women,
- Doorstep delivery of rations to the city’s residents,
- Free electricity to households that are using less than 200 units of power
- Mechanization of sewage cleaning operations
- Moreover, during the COVID-19 pandemic, the government restricted Delhi’s medical resources to its residents alone
Need for new NCT of Delhi (Amendment) Bill
The Centre introduced the bill in Lok Sabha by mentioning the needs of the bill which includes:
- The Bill seeks to give effect to the 2018 judgement and implementing the verdict.
- The new Bill is also intended to promote cooperative federalism between the centre and the state.
- The Bill would address the ambiguities in the interpretation of legislative provisions.
Implications of NCT of Delhi (Amendment) Bill
- Equating the L-G with the government simply undermines the legitimacy of the elected government thereby disrespecting representative democracy.
- Further, The bill goes against the spirit of the 2018 verdict. The provisions such as getting the compulsory opinion from the L-G are against the verdict.
- The NCT of Delhi (Amendment) Bill restricts the Delhi government from inquiring into executive matters. The Delhi assembly at present is examining multiple issues ranging from riots to the environment. This disregards the ideal of democracy conceived for the NCT of Delhi by Article 239AA of the Constitution.
- The NCT of Delhi (Amendment) Bill if passed would be a huge setback for Delhi’s quest for full statehood. As the L-G gets precedence to the Delhi government.
- The bill empowers L-G to specify certain matters on which his opinion must be taken. This can curtail the autonomy that any elected government legitimately requires for governance.
- Providing excess powers to L-G can also distort the federal equilibrium. The centre can use this bill as a precedent to curtail the powers of other states in the future.
- The new bill should be reconsidered in the light of Justice D Y Chandrachud’s note in the 2018 verdict: “In a democratic form of government, the real power must subsist in the elected arms of the state”.
- A cautious discussion and deliberation should take place between the Centre and Delhi government on the ambiguous provision of the bill. This will help in the eradication of unconstitutional and undemocratic provisions.
- Apart from that, the government at the centre and state must cooperate to make sure that L-G can discharge its constitutional function. At the same time, they need to avoid L-G doesn’t become a hindrance to development.
The government must reconsider the NCT of Delhi (Amendment) Bill as per the advice of the Supreme Court. The revamped provisions should enable L-G to act as a facilitator for upholding the law of the land and constitutional provisions.
Issue of Consent in POCSO Act
Synopsis: The Madras High Court quashed a case of aggravated sexual assault of a minor under the POCSO (Protection of Children from Sexual Offences) Act. The High Court also mentioned the need to amend the POCSO act.
The case and ruling
- Madras HC was hearing a case of aggravated penetrative sexual assault under the POCSO act.
- This case was filed against an auto driver, in his early twenties, for marrying a minor girl in 2018.
- Recently the HC Quashed the case. In this case, the Court observed the consensual relationship between the accused and the minor girl.
- The court stated that the POCSO Act is not intended to bring the romantic relationships between adolescents or teenagers within its ambit. Thus, the act requires appropriate amendments.
About the POCSO Act:
- POCSO was enacted as per Article 15 of the Constitution and the UN Convention on the Rights of the Child. It aims to protect children from sexual assault, sexual harassment, and pornography.
- Article 15 allows the state to make special provisions for women and children.
- Aggravated penetrative sexual assault under the POCSO Act, 2012 is equal to the provision for aggravated rape.
- It means rape occurs within a relationship of trust, leads to pregnancy or any other aggravating circumstance.
- Further under POCSO, an individual will be punished if the victim is below 18 years. It does not consider the consent of minors as relevant. Thus, the accused can’t plead consent as a defence.
Rationale behind the judgement:
- POCSO has become a tool for the persecution of young people in consenting sexual relationships. The act completely ignores the natural sexual tendencies of adolescents and undermines their right.
- The court also said that this case was purely individual in nature. Thus, releasing the accused in this particular case will not undermine the public interest.
- Punishing consenting youngsters results in their persecution throughout life. This is more evident in cases where the minor victim has willingly eloped or married the accused or carrying his child.
Concerns associated with judgement:
- It goes against the established Supreme Court precedent of considering rape cases as a matter of public concern.
- The Parliamentary Committee (Rajya Sabha) in 2011 prescribed a uniform age of 18. It would make sure that trials of child rape would focus on the conduct of the accused and the circumstances of the offence. Thus, The Possibility of consent was not meant to be an exception under POCSO.
- The five State studies on the functioning of Special Courts under the POCSO Act shows the complicated nature of consensual cases.
- As per the study, adolescents can and do choose to have sex. However, they are still children, and their growing sexual autonomy is prone to abuse. This issue resulted in inconsistent and unprincipled adjudication.
- The judgement has highlighted the urgent need of amending the rigid stance in the POCSO Act.
- The courts should create a fine balance between the sexual rights of adolescents and their gullibility of being exposed.
- Further, this balance can be rightly created when the legislature is willing to provide clarity on the core wrongs that POCSO is meant to address.
Rajya Sabha Passes “National Institutes of Food Technology Bill, 2019”
What is the news?
The Rajya Sabha passed the National Institutes of Food Technology, Entrepreneurship and Management Bill, 2019.
What does the bill provide?
The bill declares two institutes of food technology, entrepreneurship, and management as institutions of national importance. These are:
- National Institute of Food Technology Entrepreneurship and Management, Haryana
- Indian Institute of Food Processing Technology, Tamil Nadu.
What are Institutions of National Importance?
- An institution that serves as an important player in developing highly skilled personnel within the specified region of the country/state.
- The status is conferred on a premier public higher education institution in India by an act of the Parliament of India.
Benefits of National Importance Tag:
- Firstly, these institutes are provided functional autonomy to:
- design and develop courses
- Award Degrees such as Bachelor of Technology, Master of Technology, and Ph.D.
- Undertake research activities
- Secondly, the institutes would also implement the reservation policy of the government. It would also undertake special outreach activities for the benefit of concerned stakeholders.
- Lastly, the recognition would also enable the institutes to provide world-class teaching and research experience by adopting innovative practices.
Source: The Hindu
Lok Sabha gives approval for “National Capital Territory Bill”
What is the News?
Lok Sabha passes the National Capital Territory of Delhi Laws (Special Provisions) Second (Amendment) Bill, 2020.
About National Capital Territory of Delhi Laws Second (Amendment) Bill, 2020:
- The bill amends the National Capital Territory of Delhi Laws (Special Provisions) Second Act,2011. The 2011 Act was valid till 31st December 2020. The Bill seeks to extend this deadline till the end of December 2023.
- The bill seeks to regularise unauthorized colonies based on 2 qualifications
- that existed in the National Capital Territory of Delhi as of June 1,2014 and
- that had seen development up to 50% as of January 1,2015.
- It also provides protection to certain forms of unauthorized developments in Delhi from punitive action where adequate measures are yet to be taken.
What was the need for this bill?
- There are 1,700 unauthorized colonies in Delhi. Due to unauthorization, these colonies are not receiving proper amenities. This Bill provides ownership rights to those living in these colonies.
- The bill would also facilitate access to institutional credit and also improve the basic amenities.
Source: The Hindu
Status of Unlawful Activities Prevention Act(UAPA) in 2019
What is the News?
The Ministry of Home Affairs(MHA) informed Lok Sabha about the number of cases registered under the Unlawful Activities [Prevention] Act(UAPA) in 2019.
Key Data Provided by MHA on cases under UAPA:
- Persons arrested under UAPA: In 1226 cases around 1948 persons were arrested under UAPA across the country in 2019.
- This is a 72% increase in the number of persons arrested under the UAPA in 2019 compared to 2015.
- The Highest Number of Cases: In 2019, the highest number of cases were registered in Manipur. This is then followed by Tamil Nadu, Jammu, and Kashmir, Jharkhand, and Assam.
- The Highest Number of Arrests: The highest number of arrests in 2019 was made in Uttar Pradesh. The is then followed by Manipur, Tamil Nadu, Jammu, and Kashmir and Jharkhand followed the UP.
- Terrorist Organisations: The government has declared 42 organisations as terrorist organisations and listed their names in the First Schedule of the UAPA.
- Convictions: Only 2% of cases registered under the UAPA between 2016-2019 ended in convictions by the court.
About Unlawful Activities [Prevention] Act(UAPA):
- UAPA was introduced in 1967 to target secessionist organizations. It is primarily an anti-terror law aimed at preventing certain unlawful activities of individuals and associations.
- Investigation: The cases under the UAPA are investigated by the State police and the National Investigation Agency(NIA).
- Bail: Under the act, getting bail is rare. The investigating agency has up to 180 days to file a charge sheet.
Source: The Hindu
Clarification on IT Rules, 2021 for OTT Platforms
What is the News?
The Ministry of Information and Broadcasting clarifies certain aspects of IT Rules, 2021 for OTT platforms. It clarified that there will be no government nominee in the self-regulatory body.
What is the issue?
The Central government notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. These rules broadly deal with social media and over-the-top(OTT) platforms.
What is the Ministry’s clarification?
- The over-the-top(OTT) platforms will not have to get themselves registered with the government.
- There will be no government-appointed member in the self-regulatory body that will address complaints.
Rules for OTT Platforms:
- Self-Classification of Content: The OTT platforms would self-classify the content into five age-based categories i.e. U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).
- Parental Lock: Platforms would implement parental locks for content classified as U/A 13+ or higher. A reliable age verification mechanism for content classified as “A” is required.
Read more – IT Rules 2021 for OTT and Social Media
3- Tier Grievance Redressal Mechanism
- Grievance Cell: The publisher has to appoint a Grievance Redressal Officer based in India. The officer shall be responsible for the redressal of grievances received by it. He shall take a decision on every grievance it receives within 15 days.
- Self Regulatory Body: There may be one or more self-regulatory bodies of publishers. Such a body shall be headed by a retired judge of the Supreme Court, a High Court, or an independent eminent person. It will not have more than six members.
- This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not been resolved by the publisher within 15 days.
- Oversight Mechanism by Government: An Inter-ministerial panel will be set up. It will look into the complaints if they are not resolved at the first two levels.
Source: The Hindu
New IT Rules for Social Media and OTT platforms – Explained Pointwise
The Government of India has released the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021. It aims to regulate social media, digital news media, and Over-The-Top (OTT) content providers. The rules were jointly announced by the Minister for Information Technology and the Minister for Information and Broadcasting. Despite being praised by few experts as revolutionary, it also has certain challenges to be addressed.
Need for the New IT Rules 2021:
India at present doesn’t have any specific rules to govern the digital news media and OTT platforms. At present these are governed under Section 79 of the IT Act. But it was not able to effectively control the misuse of data over social media and digital platforms. The reasons were,
- Non-liability of Intermediary:
- Section 69 of the IT Act gives power to the government to issue directions “to intercept, decrypt or monitor…any information generated, transmitted, received or stored” in any digital equipment.
- The Intermediaries are required to preserve and retain specified information. Further, they have to obey the directions issued by the government from time to time.
- By adhering to government rules, they will get protected from legal action for any user-generated content under Section 79. Section 79 states that an intermediary (Digital media and OTTs) shall not be liable for any third party information, data, or communication
- Further, the user base of big companies has expanded rapidly. Currently there are over 53 crore WhatsApp users, over 44.8 Crore YouTube users and 41 Crore Facebook users.
- The government rejected the Self-regulatory toolkit submitted by 17 OTT Platforms. The government rejected them for reasons like lack of independent third-party monitoring, the tool-kit did not have a well-defined Code of Ethics, etc.
This induced the government to come up with new rules under the IT Act, 2000. The IT Rules 2011 got replaced with the new IT Rules 2021.
Salient provisions of IT Rules 2021
The new IT rules have been framed to address the Social Media, Digital Media and OTT platforms in a specific manner.
New IT Rules related to Social Media:
- Social media companies are prohibited from hosting or publishing any unlawful information. These information are “in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries, etc.
- If such information is hosted or published the government can take down such information within 24 hours. The user will be given a notice before his/her content is taken down.
- The government can direct messaging platforms to tie the identity of the user with the message transmitted by him/her for strengthening traceability.
- The IT rules 2021 call for social media companies to publish a monthly compliance report.
- Social media platforms are classified into two categories
- Social media intermediaries – Platforms that have a limited user base.
- Significant social media intermediaries – These are the platforms with a large user base.
- The significant social media intermediaries have to follow few additional measures like:
- These platforms should have a physical contact address in India.
- Appointing a Chief Compliance Officer, Nodal Contact Person, and a Resident Grievance Officer in India. All of them should be Indian Residents.
- Nodal Contact Person will do 24×7 coordination with law enforcement agencies.
- The Resident Grievance Officer must acknowledge the complaint within 24 hours, and resolve it within 15 days of receipt.
New IT Rules related to Digital media and OTT platforms:
- A Code of Ethics has been prescribed for OTT platforms and digital media entities.
- The streaming platforms (Like Netflix and Amazon Prime) will have to self-classify content on five age-based categories: U (universal), 7+, 13+, 16+, and A (adult).
- They need to have suitable parental locks for 13+ content and a robust age verification system for accessing adult content.
- Publishers of news on digital media will have to observe the norms of journalistic conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act.
- A three-level grievance redressal mechanism has also been established:
- Level-I: Self-regulation by the publishers
- Level-II: Self-regulating body: This body shall be headed by a retired judge of the Supreme Court or a High Court or independent eminent person.
- Level-III: Oversight mechanism: I&B Ministry will formulate an oversight mechanism and establish an inter-departmental committee for hearing grievances. This body will also have censorship and blocking powers.
Advantages of the new IT Rules 2021
- It will ensure that social media platforms have to keep better checks and balances over their platforms. This will ensure the data is not shared unlawfully. This will ensure adherence to the rule of law.
- The new IT rules enhance government regulation over social and digital media. This will enhance accountability and prevent arbitrary actions by digital platforms like the recent one by Twitter.
- The new IT rules will lead to the empowerment of citizens. Since there is a mechanism for redressal and timely resolution of their grievances.
- Disinformation (Fake and wrong information) of data can be controlled. Since there is proper regulatory mechanism, disinformation can be removed easily. This will reduce instances of fake news, violence, the spread of defamatory content and disruption of public order.
- Giving due notice before removing content will prevent arbitrary removal of content.
- The imposition of print and electronic code of conduct on digital news media would ensure a level playing field for every media.
- It will strengthen India’s position as a leader in digital policy and technological innovation. For example, China, with its larger digital population, has not been able to provide a fair and open local market for global companies in the digital space due to absence of proper IT Rules and Regulation.
Criticisms of the new IT Rules 2021
- The New IT rules were not put for public consultation. Especially those related to regulations of online news portals and video streaming platforms. For example, IAMAI(Internet and Mobile Association of India) was not consulted on the proposed OTT guidelines.
- The rules allow the government to enforce a traceability mechanism. This simply means a threat to the user’s privacy. It will hamper the end-to-end encryption of platforms like WhatsApp.
- As the new rules curtail free speech on digital platforms, there will be a sense of fear among the users.
- The IT Act doesn’t cover content authors and creators like news media. But rules have included them. This provides discretionary powers to the government.
- The proposed oversight mechanism doesn’t have any legislative backing which is generally given to other regulators.
- For example, the Telecom Regulatory Authority of India Act provides powers to TRAI (Telecom Regulatory Authority of India). Under the rules, the regulation will be done by a body composed of bureaucrats who might perform discretionary censorship thereby enhancing political control.
Suggestions for smooth implementation of new IT rules
- The government should consult with appropriate stakeholders. This will improve the inclusivity and acceptability of the new IT rules.
- The focus should be on strengthening citizen’s rights by learning from successful global examples like OFCOM (OFCOM is a communication regulator in the UK).
- The government must have a mindset of flexibility and agility to support the rules adequately.
- OTT platforms while regulating the content have to strike a balance. Especially between the diverse Indian society and the beliefs of viewers in India.
The enactment of new IT rules 2021 is a watershed moment that will transform the digital information ecology in India. A fine balance between freedom of speech and the need to curb the misuse in digital platforms have to be maintained. Both the government and the digital platforms will have to work together and fulfill this responsibility.
Govt announces new social media rules to curb its misuse
What is the news?
The Government of India has released the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021. It aims to regulate social media, digital news media and over-the-top (OTT) content providers.
Key Provisions of the Rules:
Social media companies and redressal: The government wants social media companies to have a mechanism to address complaints from users. It wants social media intermediaries to appoint the following officers:
- Chief Compliance Officer, who shall be responsible for ensuring compliance with the Act and Rules.
- Nodal Contact Person for 24×7 coordination with law enforcement agencies.
- Resident Grievance Officer: He will receive and resolve complaints from users. The officer must acknowledge the complaint within 24 hours, and resolve it within 15 days of receipt.
All these officers have to be residents of India.
Categories of Content that should not be posted: The rules lay down categories of content that the social media platform should not host. It includes content that
- Threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states or public order
- Causes incitement to the commission of any cognizable offence or
- Prevents investigation of any offence or is insulting any foreign States
- Content is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy,
- Related to encouraging money laundering or gambling or is inconsistent with or contrary to the laws of India.
Removal of these contents: The rules stipulate that the platforms should remove the content within 36 hours. Duration will count from the receipt of information from a court or the appropriate government agency about the platform hosting prohibited content.
Monthly Compliance Report:
- The platforms will need to publish a monthly compliance report. It should have the details of complaints received and action taken on the complaints.
Track Originator of Message:
- The social media platforms need to disclose the first originator of the objectionable tweet or message if asked either by a court or a government authority.
- This will be required in matters related to the security and sovereignty of India, public order, or with regard to rape or any other sexually explicit material.
Self-Classification of Content:
- The Over the Top(OTT) platforms would classify the content into five age-based categories- U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).
- Platforms would be required to implement parental locks for content classified as U/A 13+ or higher. A reliable age verification mechanisms for content classified as “A” should be placed.
Publishing News on Digital Media:
- Publishers of news on digital media will be required to observe norms of journalistic conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act.
Penalties for Non-Compliance of Rules:
- In case an intermediary fails to observe the rules, it will be liable for punishment under any law for the time being in force including the provisions of the IT Act and the Indian Penal Code.
- The penal provisions vary from imprisonment for three years to a maximum of seven years, with fines starting from Rs 2 lakh.
Source: Indian Express
Why Sedition law needs a relook?
Synopsis: Recent charges of sedition against individuals have brought back focus to seditions law. The oppression of dissenters is more dangerous for society. It creates more division in society compared to seditious acts.
In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court defended the constitutional validity of sedition. It noted that it is a reasonable restriction on free speech as provided in Article 19(2) of the Constitution.
The court also made clear that an individual has the right to speak or write anything about the government. However, it should not result in inciting people to violence against the government.
Why does the sedition law need a relook?
In the Aseem Trivedi case, the Bombay High Court issued guidelines which the police must follow in a sedition case. These guidelines include an objective evaluation of the seditious material. By that police must form an opinion on whether the words and actions caused disaffection and disloyalty to the government. However, the law needs a relook due to the following reasons:
- Firstly, despite repetitive warnings to law enforcement agencies by courts, there is poor implementation of guidelines given by the court.
- Secondly, the recent reports show that the number of cases of sedition under Section 124A increased by 160%. Whereas the rate of conviction dropped to 3.3% in 2019 from 33.3% in 2016.
- Thirdly, in this social media age, information travels at a lightning speed, and Cyberbullies can easily trend wrong information. Any kind of misinformation can lead to public disorder.
- Fourthly, the U.K. abolished the offence of sedition in 2010. Whereas, India is still retaining the law given by the British Empire.
- Fifthly, various commissions have questioned the efficacy of such a law in the statute book. For instance, the Law Commission of India questioned how far it is justified to retain Section 124A.
What steps can be taken to deal with sedition?
Sedition laws will not be repealed anytime sooner. In the meantime, courts can adopt an approach that can balance the issue of National security and the right to speech.
- At present sedition is decided based on a content-based test that reviews only the text i.e. even if a written material not caused any social unrest, it can be held a seditious text based on the words used.
- Courts must adopt an effect-based test that examines the effects of the seditious text. It means whether the text resulted in violence or not.
- The principles of justice, liberty, equality and fraternity exists in the Preamble to our Constitution. Courts must uphold these principles.
It is not the alleged seditious acts that are creating fragments in our society; it is in fact the persecution of individuals and labelling them that are really creating cracks in our socio-political ecosystem.
Amendments proposed to the Juvenile Justice Act – Explained pointwise
Table of contents:
Recently Union Cabinet has approved the proposal to amend the Juvenile Justice (Care and Protection of Children) Act, 2015. This was proposed by the Ministry of Women and Child Development. The proposed changes will strengthen the Child Protection mechanism and ensure smooth implementation of the Juvenile Justice Act.
Who is Juvenile in India?
Salient provisions of the Juvenile Justice (Care and Protection of Children) Act 2015:
The Juvenile Justice Act of 2015 replaced the Juvenile Justice Act of 2010. The salient provisions of the 2015 Act are,
- The Act changed the nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict with law’.
- Further, the Act defined terms such as abandoned, orphaned and surrendered children.
- The Act categorized the crimes committed by children into three categories. Such as petty, serious and heinous offences.
- The Act provided for setting up of mandatory Juvenile Justice Boards (JJB) and Child Welfare Committees (CWC) in every district. Also, these boards and committees must have at least one woman member each.
- CWC: The Committee have the power to dispose of cases for the care, protection, development, treatment and rehabilitation of the children. Further, the committee also certifies the Child as legally free for the adoption process.
- Further, the Act made the Central Adoption Resource Authority (CARA) a statutory body. This facilitated better performance and functions of CARA.
- All Child Care Institutions(CCI) have to register themselves under the Act within 6 months from the date of commencement of the Act.
- Children in the age group of 16 – 18 years can be treated as adults in the case of heinous crimes. But for treating them as an adult the JJB has to assess the child’s physical and mental capacities and certify the child.
What are the issues with the present Act?
- Non-compliance to the provisions of the Act: A survey conducted by the National Commission for Protection of Child Rights (NCPCR) points out that not even a single Child Care Institution (CCI) in India was in 100 per cent compliance with the provisions of the Juvenile Justice Act. This is because,
- If the CCI did not receive a reply from the government within 3 months, it was “deemed as registered’’ for six months, even without government permission. This increased the non-compliance.
- The survey also found CCIs with large funds, including foreign funding, had been keeping children in unsanitary conditions.
- Under this ACT, no specific criteria has been provided to check the background of the members of the child welfare committees (CWC).
- Long pendency of cases: Juvenile Justice Committee of the Supreme Court in 2017 highlighted that about 800-1000 adoption cases are pending in various courts. The committee further pointed out that the delay in adoption is leading to various challenges like not able to get a birth certificate of a child, school admission is not feasible, etc.
- Ambiguity related to the Offences: The 2015 Act has various ambiguities related to the offences like;
- At present, there is no mention of a minimum sentence in the Act.
- Moreover, the Act does not provide what is a serious offence?
- There are little oversight and monitoring of CCIs by CWC and the State Child Protection Units. So, District Magistrates are informed about an offence committed by the CCI only after the occurrence of the incident. For example,
What are the Proposed amendments by the Ministry of WCD?
The recent amendments aim to strengthen child protection and ensure proper monitoring of CCIs.
- Clearing the ambiguity: For the first time, the proposal clarifies both heinous and serious crimes. The Amendment for the first time mentioned the category of “serious crimes” and also defined that.
Serious crime: If an offence under any Indian law attracts a maximum punishment of seven years or more but no minimum sentence is prescribed or a minimum sentence less than seven years is prescribed. Then that offence is considered a serious offence.
For example, possession and sale of an illegal substance, such as drugs or alcohol, will now fall under the ambit of a “serious crime’’.
- Reaching the unreached: The amendment will include victims of trafficking, drug abuse and those abandoned by their guardians under the definition of “child in need of care” and protection.
- Checking the background of the members of CWC more clearly: The amendment will not only check the background of the members of CWC but will also check the educational qualification of a CWC member.
- Expanding the role of District Magistrates (DM): The amendment provides more power to the District Magistrate to tackle the various challenges faced by the present Act.
- Speedy disposal of pending adoption cases: The amendment authorizes the DM and Additional District Magistrate (ADMs) to issue adoption orders for faster adoption of children.
- Increase the scrutiny of Child Care Institutions: DMs and ADMs will monitor the functioning of various agencies under the Act. Like Juvenile Justice Boards, Child Welfare Committees, etc.
Suggestions to improve the implementation of Act:
- Child Welfare Committees are not effectively performing their functions of care, protection and rehabilitation of a child. So, the government have to provide adequate training to the members of CWC.
- Role of State government: State governments should provide immediate bail to a child who committed petty and serious crimes. Currently, children are staying in welfare homes for a longer time period, as the bail is not getting provided on time by State governments.
- Training, sensitisation of DM: The current amendment confers many powers upon the DM. But the DM is already overburdened with the other works. So the DMs should get adequate training and sensitisation for faster and effective implementation of the Juvenile Justice Act.
The recent amendment approved by the Cabinet is one of the much-needed steps to ensure proper implementation of the Juvenile Justice Act. But the real change will occur only if the amendment becomes the Act along with the proper training of officials.
“Vishaka Guidelines” and “The Sexual Harassment at Workplace Act 2013”
What is the News?
A Delhi court has acquitted a former journalist in a defamation case filed by former Union minister.
In this case, a journalist initially made allegations of sexual harassment against the former Union Minister. In turn, a criminal defamation case was filed in Delhi High Court against the journalist by Union Minister. However, Delhi High Court acquitted the journalist of the Criminal Defamation charges in its very recent verdict.
Key Observations made by the Court:
- Sexual abuse takes away the dignity and self-confidence of women. So the right to dignity will be protected not the right of the reputation of a person.
- The women have the right to put her grievance even after decades after the occurrence of the incident.
- As there was no Vishaka Guidelines and The Sexual Harassment of Women at Workplace Act, 2013 at the time of the harassment.
In 1997 as part of the Vishaka judgment, the Supreme Court laid down specific guidelines on the prevention of sexual harassment of women at the workplace. The important points of the guidelines were:
- The Vishaka guidelines defined sexual harassment and codified preventive measures like the formation of the complaints committee
- All employers both public and private sector should take appropriate steps to prevent sexual harassment.
- Victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
- The guidelines were superseded by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The Sexual Harassment of Women at Workplace(prevention, prohibition and redressal) Act, 2013:
The government enacted the Act in 2013. The major provisions of the Act were,
- Aim: To prevent and protect women against sexual harassment at the workplace and also to ensure effective redressal of complaints of sexual harassment.
- The Act defines sexual harassment in the workplace. The Act creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
- Every workplace is required to constitute an Internal Complaints Committee (ICC). The ICC is mandatory at each office or branch with 10 or more employees.
- These Internal Complaints Committees have the powers of civil courts for gathering evidence.
- Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine.
- Higher penalties and cancellation of license or registration to conduct business is also mentioned if violations are repeated.
Further Section 354A was added to the Indian Penal Code through the Criminal Law (Amendment) Act, 2013 to provide enough punishment for sexual harassment to women at the workplace.
Source: Indian Express
Issues in Medical Termination of Pregnancy (Amendment) Bill, 2020
Source: The Hindu
Syllabus: Issues relating to development and management of Social Sector/Services relating to Health, Education, Human Resources.
Synopsis: The Medical Termination of Pregnancy (Amendment) Bill 2020 (MTP Bill) does not confer women with rights over their own bodies.
- Recently termination of pregnancy was legalised up to the 14th week of pregnancy by Argentina’s Congress.
- Parliament of India will also debate the abortion law in this budget session.
- However, the proposed Medical Termination of Pregnancy (Amendment) Bill, 2020 (MTP Bill) is also not providing autonomy to women, unlike Argentina.
Medical Termination of Pregnancy Act 1971
- The Medical Termination of Pregnancy Act 1971 was enacted to reduce the maternity mortality ratio due to unsafe abortions.
- The MTP Act only allows termination of pregnancy up to 20 weeks of pregnancy. Further, it requires a second doctor’s approval if the pregnancy is beyond 12 weeks.
- The grounds on which a pregnancy can be terminated are-
- If there is a grave risk to the physical or mental health of the woman.
- If the pregnancy results from a sexual offense such as rape or intercourse with a mentally challenged woman.
Issues in the MTP Act-
- First, the act provides the State with control over women’s rights through legal and medical methods. It gives no regard to the woman’s choice of keeping or terminating her pregnancy.
- Second, It promotes arbitrary interpretation. In one case, the Court held that there were no grounds for abortion since the pregnancy was the outcome of a voluntary act. The woman knew the consequences of her Act.
Thus, due to such circumstances women recourse to the unsafe method of abortion. This is the third-largest cause of maternal deaths in India.
Now, the draft MTP bill 2020 is under consideration. But it is also not providing women with the required autonomy.
Issues in the proposed Medical Termination of Pregnancy (Amendment) Bill, 2020
- First, The bill continuous with the legacy of hetero-patriarchal population control. Thus, men’s control over women’s bodies will continue.
- Second, It still requires the signature of one doctor on termination of pregnancies up to 20 weeks old. For pregnancies between 20 and 24 weeks old, approval of two doctors is required.
- Third, The bill mandates the setup of a Medical Board in every state. The Medical Boards require giving opinions based on the facts regarding the termination of pregnancies. However, their personal beliefs could impact their opinion.
- Fourth, The bill allows safe abortions in case of foetal “abnormalities at any stage of pregnancy. However, it does not consider valid situations for abortion like personal choice, sudden separation or death of a partner or domestic violence.
- Fifth, the word ‘women’ is used in the proposed bill. This can deny access to safe abortion to transgender, intersex, and gender diverse persons.
- Termination of pregnancy is a woman’s choice to decide her life’s decision as an adult. Women can be responsible for their own choices.
- The Government needs to understand the fact that State or doctors have no right to deny a woman a safe abortion. Otherwise, it will put questions on women’s empowerment in the nation.
Medical Termination of Pregnancy (Amendment) Bill, 2020 – Explained
Table of contents:
Recently Medical Termination of Pregnancy (Amendment) Bill 2020 is scheduled to be tabled in Rajya Sabha. The MTP bill was passed in Lok Sabha last year. The bill aims to strengthen the abortion rights of women from the earlier Medical Termination of Pregnancy Act 1971. But the bill has certain important challenges associated with it, preventing it to become a comprehensive legislation.
The Act defines the conditions on which the termination of pregnancy can be made, and the qualified persons to perform the same. The Act aims to reduce the maternal mortality ratio due to unsafe abortions in India.
The act allows a woman to terminate her pregnancy within the first 12 weeks of pregnancy. After consulting an RMP (registered medical practitioner) woman can terminate her pregnancy.
If the women want to terminate her pregnancy between 12-20 weeks, she needs to get an opinion from 2 RMPs. The Medical practitioners have to ascertain that continuance of the pregnancy would risk the life of the pregnant woman or substantial risk (Physical or mental abnormalities) to the child if it is born.
First, the present abortion law is five decades old. The law permits abortion up to a maximum foetal gestation period of 20 weeks only. This denies reproductive rights to women. (Abortion is one of the important aspects of women’s reproductive health).
Second, currently, if a woman wants to terminate the pregnancy beyond 20 weeks, she has to follow legal procedure. The slow judicial process in India force woman to take illegal means to terminate the pregnancy. India Journal of Medical Ethics report in 2015 mentioned unsafe abortions were leading to 10-13% of maternal deaths in India. This makes unsafe abortions as the third-highest cause of maternal death.
Third, the advancement of science. After the 20th week, many foetal abnormalities can be detected using techniques like Ultrasonography. As the current law limit the time to 20 weeks, it can cause trouble to the mother as well as children in the near future. Hence, its extension is much needed.
Fourth, International practice: 52 % of global countries including the UK, Ethiopia, Austria, Spain, Italy, France allow termination of pregnancy beyond 20 weeks if there are any foetal abnormalities. 23 countries including Germany, Canada, Vietnam allow termination of pregnancy at any time based on the request of the mother.
First, the Bill extends the upper limit for permitting abortions from the current 20 weeks to 24 under special circumstances. This is applicable to a “special category of women”. Victims of abuse, rape survivors, the differently-abled, and minors fall under this category.
Second, the Bill proposes the requirement of the opinion of one registered medical practitioner (RMP) for termination of pregnancy up to 20 weeks of gestation.
Third, the Bill provides for two RMPs opinions for termination of pregnancy between 20 and 24 weeks.
Fourth, Bill constitutes a Medical Board. Every state government has to constitute a medical board. These medical boards will diagnose pregnant women for substantial foetal abnormalities. If any such substantial foetal abnormalities get detected then the termination of pregnancy can be done even after 24 weeks of gestation (no upper limit for the termination of pregnency in this case).
The Medical Boards will consist of the following members:
- a gynecologist,
- a pediatrician,
- a radiologist or sonologist,
- any other number of members, as may be notified by the state government.
Fifth, Bill protects the privacy of a woman. No RMP can reveal the name and other particulars of a woman who performs the abortion. However, RMP can reveal the identity to a person authorised by law. The violation of this provision is punishable with imprisonment up to one year, or a fine, or both.
First, the Bill raises the foetal gestation period for termination of pregnancy beyond 20 weeks. The MTP Bill also includes a special category of women. In short, the bill enables access to safe abortion and curb illegal abortion practices.
Second, the 1971 MTP Act states that, if a minor wants to terminate her pregnancy, the guardian has to provide written consent. The proposed bill has excluded this provision.
Third, the Bill will strengthen the reproductive rights of women. The Supreme Court in Mrs X v. Union of India, 2017 case has recognised women’s right to make reproductive choices and their decision to abort as a dimension of their personal liberty. The court also mentioned abortion primarily fall within the Right to Privacy.
Fourth, the Bill will reduce the burden on the Judiciary. At present, there are many cases registered in court seeking permission for abortion beyond 20 weeks. Meanwhile, with the establishment of the Medical Board, the burden on the judiciary will reduce.
First, the constitution of the Medical board. The constitution of the medical board presents a variety of challenges such as
- The present healthcare budgetary allocation (1.5% of GDP) makes setting up a board across the country, both financially and practically impossible.
- Apart from that, even if it is set up, access to the board by pregnant women in remote areas of the state is a matter of concern.
- No time limit is set for the board to respond to the requests.
- The board subject women to multiple examinations before allowing her to terminate her pregnancy. This is a violation of rights to privacy and dignity.
- Personal beliefs could impact the medical board’s opinion. For example, Madhya Pradesh High Court denied terminating the pregnancy of 13-year-old rape survivor only because a psychiatrist on the medical board had not supported her abortion.
Second, the amendments continue the patriarchal population control legacy. The bill does not give women control over their own bodies. It requires the medical practitioner’s opinion and not the request or will of pregnant women alone.
Third, the current bill does not consider a few important things in the termination of pregnancy. Such as personal choice, a sudden change in circumstances (due to separation from or death of a partner), and domestic violence.
Fourth, the amendment also fails to consider the abortion rights of intersex, transgender, and gender diverse persons.
First, the government needs to amend the bill to include a few changes in the Medical Board.
- The government has to specify a time limit for the board.
- The government have to consider the majority of opinion of the board members to avoid personal belief’s interfering with the board opinions.
Second, the government has to introduce personal choice, a sudden change in circumstances, and domestic violence as a criterion. Apart from that, the bill must include abortion among intersex, transgender, and gender diverse persons.
Third, the government might include a provision of will to terminate the pregnancy at an early stage within 20 weeks without the opinion of RMP. On the other hand, the government also have to release clear guidelines to restrict,
- Women performing abortions to prefer a male child
- Women performing abortions due to family pressures etc.
In conclusion, the MTP bill 2020 is a step in the right direction to ensure access to safe and legal abortion. But, it falls a few steps behind in terms of ensuring dignity, autonomy and justice for women. This can be done by including the necessary suggestions under the Act.
Low conviction rate under “Unlawful Activities (Prevention) Act” (UAPA)
What is the news?
Union Home Ministry has informed Rajya Sabha about the cases registered under the Unlawful Activities (Prevention) Act and Sedition(Section-124A).
Cases under UAPA:
- Between 2016 and 2019, the total number of the persons arrested and convicted in the country under UAPA were 5,922 and 132 respectively. This means only 2.2 % of cases registered under the Act ended in convictions by the court.
- The NCRB does not maintain this data on the basis of religion, race, caste or gender.
Cases under Sedition:
- In 2019, as many as 96 persons were arrested for sedition (Section 124A IPC) but only two were convicted and 29 persons were acquitted.
- The most cases of sedition in 2019 were registered in the States of Karnataka followed by Assam and J&K & Ladakh.
Unlawful Activities (Prevention) Act,1967:
- It is primarily an anti-terror law – aimed at more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities.
- It was promulgated in 1967 to target secessionist organisations. It is considered to be the predecessor of laws such as the (now repealed) Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act(POTA).
Key Provisions of the Act:
- The Act assigns absolute power to the central government. It can declare an activity as unlawful, by way of an Official Gazette.
- The act has the death penalty and life imprisonment as the highest punishments.
- Under the act, both Indian and foreign nationals can be charged. It will be applicable to the offenders in the same manner, even if the crime is committed on a foreign land, outside India.
- The investigating agency can file a charge sheet in maximum 180 days after the arrests. This duration can be extended further after information to the court.
- The act was amended in 2004. It added “terrorist act” to the list of offences, to ban organisations for terrorist activities.
- Till 2004, “unlawful” activities referred to actions related to secession and cession of territory. Following the 2004 amendment, “terrorist act” was added to the list of offences.
- The amendment empowers the Central Government to designate individuals as terrorists on certain grounds.
- It empowers the Director-General, National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is under investigation by the agency.
- It also empowers the officers of the NIA, of the rank of Inspector or above to investigate cases of terrorism in addition to those conducted by the DSP or ACP or above rank officer in the state.
Source: The Hindu
Centre’s Powers under “Section 69A of IT Act”
What is the News?
The Government of India has asked Twitter to follow Indian laws. The government has also expressed disappointment over partial compliance with its orders.
What was the issue?
- The Ministry of Electronics and Information Technology(MeitY) ordered Twitter to block several Twitter accounts for posing a threat to law and order. The order was issued under Section 69A of the Information Technology(IT) Act.
- On this, Twitter blocked several accounts. But very soon it reactivated several of them citing free speech and because it found the content newsworthy.
- The government has said that Twitter was free to formulate its own rules and guidelines. But the Indian laws which are enacted by the Parliament must be followed irrespective of Twitter’s own rules.
- On free speech, the government has said that freedom of speech and expression is provided under Article 19 (1) of the Constitution of India.
- However, freedom of expression is not absolute, and it is subject to reasonable restrictions as mentioned in Article 19 (2) of the Constitution of India.
Section 69A of the Information Technology(IT) Act:
- When was it introduced? Section 69A of the IT Act was introduced by an amendment to the Act in 2008.
- Powers: It allows the government to block public access to any intermediary in the interest of
- Sovereignty and integrity of India
- Defence of India
- Security of the state
- Friendly relations with the foreign States or
- Public order or
- Preventing incitement of any cognisable offence relative to the above.
- Intermediaries: The intermediaries under the Act include; telecommunication companies, internet service providers, network operators, web-hosting services, search engines, payment gateways and other relevant portals and services.
- Procedure: Section 69A provides the government with the power to block public access. But the procedure to do that is listed in the IT (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009.
- Penal Provisions: The Act says prescribes punishment for any intermediary (internet platform) for failure to comply with the government direction. Punishment can be imprisonment for up to seven years and shall also be liable to fine.
Source: The Hindu
law on draping National Flag over body of a deceased
What is the News?
Police in Uttar Pradesh has booked few persons under The Prevention of Insults to National Honour Act, 1971. They had allegedly draped the body of their relative in the national flag after his death.
Prevention of Insults to National Honour Act,1971:
- This act penalises the desecration of or insults to the country’s national symbols including, the National Flag, the constitution, the National Anthem, and the map of India. It also includes penalties for contempt of the Indian constitution.
- Section 2 of the act specifies punishment for insults to the Indian National Flag and the Constitution of India.
- The law specifies acts of insult to the Indian flag and constitution. Some acts of insult include burning, mutilation, defacing, disfiguring, or showing disrespect to the National Flag.
- It also prohibits using Indian National Flag as a drapery in any form except in State funerals or armed forces or other para-military forces funerals.
- It prescribes punishment of imprisonment for insults for up to 3 years or a fine or both.
About Flag Code of India, 2002
The Flag Code of India contains a set of laws, practices, and conventions for the display of the national flag of India. It also prohibits using the national flag as a drapery except in State/Military/Central Paramilitary Forces funerals.
Use of National Flag as a drapery
- The National Flag of the country can only be used as a drapery if a funeral has been accorded the status of a state funeral.
- State funerals are held if a person passed away belongs to police, armed forces, office of President, Vice-President, Prime Minister, Cabinet Minister, Chief Minister.
- The state government can accord the state funeral status to the person other than the mentioned categories.
Source: Indian Express
DNA Technology Regulation Bill -Explained
Recently the Parliamentary Standing Committee (PSC) asked the government to pay “careful attention” to the DNA Technology (Use and Application) Regulation Bill, 2019. The PSC mentioned the DNA Technology Bill as very technical, complex and sensitive. But the PSC also mentioned the advantages of the Bill. All this raises the important question. Is India ready to have the DNA Technology Bill?
Need for such DNA Technology Bill in India:
First, countries having such legislation like the USA, have proved a significant increase in conviction rate. According to NCRB, India’s conviction rate is 48.8% only in 2017. The conviction rate can improve significantly if the DNA Bill is enacted in India.
Second, in India, Each year more than 4000 FIRs filed for not recognising the victim’s body. Not only that, In India around 175 persons missing each day. The bill will help in identifying them very easily with scientific intrastate co-operation.
Third, the Bill will come in handy during the parental disputes resolution. The Bill can also establish the identity of missing children and baby-swapping cases in hospitals.
Fourth, accurate and faster investigation of crime is feasible. Since the Bill maintains a database for convicts and suspects, the crime scene investigation will completely be based on scientific principles. This can result in a faster and accurate investigation by police officers.
Fifth, the Bill will help in research works in DNA and also create employment opportunities for skilled manpower and other non-skilled jobs.
DNA analysis is extremely useful and accurate. DNA analysis can ascertain the identity of a person from his/her DNA sample. The DNA sample can also establish biological relationships between individuals. For example, A hair sample or blood stains from clothes taken from a scene of the crime can clearly establish whether the DNA in the sample belongs to the suspected individual or not.
As a result, DNA technology is being increasingly relied upon in investigations of crime, identification of unidentified bodies, or in determining parentage, etc.
Salient provisions of the DNA Technology Bill, 2019:
First, the Bill mentions the situations under which DNA Data will be used. Under the Bill, DNA testing is allowed only in respect of 4 matters. They are,
- For offences under the Indian Penal Code, 1860.
- Civil disputes and other civil matters related to paternity suits, or to identify abandoned children.
- Offences under certain special legislations like Immoral Trafficking prevention Act, MTP Act etc.
- Medical negligence or unidentified human remains
Second, while preparing a DNA profile, bodily substances of persons may be collected by the investigating authorities. There are certain conditions mentioned under which the DNA will be collected. Like,
- For arrested persons, if the offence carries a punishment of up to seven years. Consent is needed to collect the DNA sample.
- If the offence carries more than seven years of imprisonment or death, consent is not required.
Third, the Act establishes the DNA Data Bank. The data banks will be established at the National and regional level. At the regional level, the data bank will be established for every state or two or more states.
Fourth, the Bill states that the criteria for entry, retention or removal of the DNA profile will be specified by regulations. The Bill provides that the information contained in the crime scenes will be retained.
Fifth, the Bill also establishes a DNA Regulatory Board. This DNA Regulatory Board will supervise the DNA Data Banks and DNA Laboratories. The Secretary, Department of Biotechnology, will be the ex officio Chairperson of the Board.
Sixth, the Bill also has a provision of mandatory accreditation from the Board to establish DNA Laboratories in India. The Board may revoke the accreditation for reasons such as failure to undertake DNA testing or the non-compliance of DNA Lab with the conditions attached to the accreditation.
Arguments against the Bill:
First, concerns regarding the collection of DNA itself. DNA is the base of any individual person. DNA not only not just reveal how a person looks, or what their eye colour or skin colour is. It will also reveal more intrusive information like their allergies, or susceptibility to diseases etc.
Second, the collection of DNA has also seen as a violation of two Fundamental Rights. Such as Right to Privacy under Article 21 and Right against self-discrimination under Article 23. The Bill is also seen as a violation of the Universal Declaration of Human Rights.
Third, science advances more quickly than law. Scientific laws if legislated, they need frequent course corrections to prevent misuse. In India, there are few legislations which are being used for centuries without any amendments. Failure to bring the amendment at a necessary stage will create a plethora of problems.
Fourth, there are only 15 DNA profiling labs in India. DNA Training Academy also faces a shortage of manpower. Considering this situation one cannot ensure a smooth implementation like DNA profiling, etc
Fifth, there is also a privacy concern. The DNA data can be misused just like other personal information like Cambridge Analytica scandal of Face book. For example, the Andhra government signed up with a private firm to collect DNA data from all citizens. The private firm may misuse the data for profit motives.
Lastly, there is also a possibility of Miscarriage of Justice. Like by planting innocent person DNA in crime scenes to confuse the investigation and if a crime scene is occurred in commonplace then many innocent might be harassed.
Arguments favors DNA technology Bill:
First, there will be no racial and communal profiling possible. The government mentions it will store very limited information in the DNA profile. That is just 17 sets of information (from the billions of information available in DNA sample). This will not reveal any personal data about an individual.
Second, DNA tests are already happening without any regulatory safeguards. The PSC in its recent report mentions the importance of the DNA Bill to bring the DNA tests into the ambit of the law.
Third, an individual’s privacy is ensured in the Bill. The Bill has very specific provisions for the collection of DNA data. The DNA is not collected from common people and it is collected from the convicts and missing person. The PSC also supported the view in its recent report.
First, the law would be better implemented if the Data Protection Bill based on the Sri Krishna Committee is passed first. Since the Data Protection Bill fixes the privacy of data protection.
Second, there is also a need for a robust procedure and policy for collection of DNA samples, within the constitutional provisions like respecting Article 21. Apart from that the policy also has to respect the Universal Declaration of Human Rights.
In conclusion, It is much-needed legislation. If implemented clearly then there going to be the voluntary submission of DNA. But that will be possible if the government enacts the Bill with necessary checks and balances.
Govt. releases new guidelines for banks under “Foreign Contribution (Regulation) Act”
What is the News?
Union Home Ministry has announced new guidelines for banks, under the Foreign Contribution (Regulation) Act. These guidelines are related to the donations received by non-governmental organizations (NGOs) and associations.
What are the new FCRA guidelines?
- The donations received in Indian rupees by the NGOs and associations from any foreign source should be treated as a foreign contribution. Even if that source is located in India at the time of such donation.
- It will include the contributions by foreigners of Indian origin like OCI or PIO cardholders, in Indian rupees(INR).
- As per the existing rules, Banks need to report any receipt or utilization of any foreign contribution, by any NGO, association, or person. Banks should submit these reports to the Central government within 48 hours.
- Rules cover all NGOs, whether they are registered or granted prior permission under the FCRA.
- Any violation by the NGO or by the bank of these rules of FCRA may invite penal provisions under the FCRA Act, 2010.
Foreign Contribution (Regulation) Act:
- FCRA was enacted in 1976 and amended in 2010. It regulates foreign donations and ensures that such contributions do not adversely affect internal security.
- Coverage: It is applicable to all associations, groups, and NGOs which intend to receive foreign donations.
- Exemption: Members of the legislature and political parties, government officials, judges, and media persons are prohibited from receiving any foreign contribution.
- However, in 2017 the FCRA was amended through the Finance Bill. This amendment allowed political parties to receive funds from,
- The Indian subsidiary of a foreign company or
- A foreign company, in which an Indian holds 50% or more shares.
- However, in 2017 the FCRA was amended through the Finance Bill. This amendment allowed political parties to receive funds from,
- Registration: It is mandatory for all such NGOs to register themselves under the FCRA. The registration is initially valid for five years, and it can be renewed subsequently if they comply with all norms.
- Amendment of FCRA Rules: In September 2020, the FCRA Act was amended by Parliament and a new provision was added. It makes it mandatory for all NGOs to receive foreign funds in a designated bank account at the State Bank of India (SBI) New Delhi branch.
Source: The Hindu
The POCSO Act and associated issues
Bombay High Court in Satheesh vs State of Maharastra case acquitted a man of sexual charges under the POCSO ( Protection of Children from Sexual Offences) act. The court cited the stringent Mandatory Minimum Sentence provision in the POCSO act and punished the person based on the IPC section 354 (Outraging the modesty of women).
However, the Supreme Court stayed the Bombay High Court verdict. But this is not an only incident, where, an accused has been acquitted under POCSO Act. Today, one more HC acquitted an accused in a similar case.
There is an urgent need to understand the issues and challenges Courts are facing in the implementation of The POCSO Act. The recent interpretation by Bombay High Court is one such issue among many.
What is the POCSO Act?
The Protection of Children from Sexual Offences Act (POCSO Act) enacted in 2012 and amended in 2019. The Act was formulated to effectively address sexual abuse and sexual exploitation of children and pornography.
Salient provisions of the Act:
First, The Act defines Child as any person below eighteen. The Act also defines different forms of sexual abuses.
Second, The Act provides for relief and rehabilitation as soon as the complaint is made to the Special Juvenile Police Unit or the local police.
Third, The Act prescribes a maximum punishment of life imprisonment or the death penalty. The Act provides a mandatory minimum punishment of three years.
Fourth, The Act provides for the establishment of Special Courts for the trial of offences under the Act.
What is the intent behind the enactment of the POCSO Act?
First, data from the 2011 Census shows, India has a 472 million population of children below the age of eighteen. To protect them from sexual offences separate legislation was required.
Second, India is a signatory to the UN Convention on the Rights of the Child. So the POCSO Act was a mandatory international commitment to protect the rights of children.
Third, the Goa Children’s Act 2003 was the only legislation which specifically focuses on child abuse. Thus national-level legislation was the need of the hour that can be implemented in every State and UTs.
Fourth, Child sexual abuse was prosecuted under various sections of IPC such as Section 375 deals with rape etc. But the IPC sections suffer from various issues such as
- IPC Section 375 does not protect male Child and protect only the traditional sexual offences like peno-vaginal intercourse.
- IPC Section 377 and IPC Section 354 does not define the terms “unnatural offences” and “modesty”.
What is the significance of the POCSO Act?
First, The Act provides for immediate relief at the filing of the case. The compensation amount can change, based on the need of the victim. For example, the Act does not define the outer limit. The Judges can include Child’s educational need, medical needs including trauma compensation while deciding the compensation amount.
Second, The Act is Gender-neutral and Child friendly. The Act defines Child as any person below 18 years of age. Apart from that, the Act includes various safeguards for the child, like protecting the identity, avoiding victimization etc.
What are the challenges associated with the POCSO Act?
First, The POCSO Act is suffered by Abysmal rate of conviction like 14% in 2014 and 18% in 2017. The National Crime Records Bureau(NCRB) data of 2016, mentions the conviction rate as 29.6%, while pendency is as high as 89%. The NCRB also mentions the cases are not disposed within a year due to reasons such as frequent adjournments, the inability of the police to file investigation report etc.
Second, Though, the Act mentions Special Children courts to be established to hear the cases. Many states did not establish such courts. This is highlighted by Re: Exploitation of Children in Orphanages in the State of Tamil Nadu v. Union of India & Ors case.
Third, the Act provides a maximum punishment of death penalty. But Justice J.S. Verma Committee (Constituted on the aftermath of the Nirbhaya case) and 262nd Report of the Law Commission of India, 2015, were against the imposition of the death penalty for rape cases.
Fourth, Section 8 of the POCSO Act prescribes a mandatory minimum sentence of three years. The state of J&K vs Vinay Nanda case the Court held that it cannot prescribe punishment lesser than the minimum prescribed punishment. This resulted into the various challenges such as
- More acquittals in POCSO cases: Percentage of acquittal is high because the Judges thinks the mandatory minimum punishment prescribed is more compared to the seriousness of the crime.
- Else the Court can acquit the accused and punish him like that of Satheesh vs State of Maharastra case. In other words, punishing the person under Section 354 of IPC (Outraging the modesty of women).
Section 7 and 8 of POCSO Act: Section 8 prescribes the punishment for the offence of sexual assault defined in Section 7 of the Act. It provides for the mandatory minimum sentence of 3 years and a maximum of 5 years.
Section 7 of the POCSO Act mentions whoever “with sexual intent” touches the private part of children or commit any such act “which involves physical contact”… “is said to have committed sexual assault”.
Difference between Section 8 of the POCSO Act and Section 354 of IPC:
|Section 8 of the POCSO Act||Section 354 of IPC|
|This section is gender-neutral||This section is only for women and not for male or transgender child|
|Punishment can be a minimum sentence of 3 years and may extend to the maximum sentence of 5 years||Punishment shall not be less than one year but it may extend to five years|
Fifth, The POCSO Act is considered as a victim-oriented statute (i.e., the damage caused to the victim assumes more importance). This makes the Act, not a neutral one. For example, Section 29 of the POCSO Act mentions If a person is prosecuted under the POCSO Act, the special court “shall presume” the accused to be guilty.
Sixth, The Act does not cover all the aspects of sexual violence of children. For instance, the Act is silent on cyberbullying and other online sexual crimes of children. The Act is also silent on cases were one child made sexual violence against another child/children.
First, the government has to amend the POCSO Act to overcome the challenges by removing the mandatory minimum sentence and the death penalty. The amendment should also include offences such as cyber bullying of children and other online sexual crimes against children.
Second, High courts should instruct the trial courts not to grant unnecessary adjournments during the trial. State police chiefs should constitute special task forces investigating cases to prevent the pendency of cases.
Third, The Supreme Court issued a direction to set up special courts within 60 days on the districts that are having more than 100 pending POCSO cases. This has to be implemented urgently.
Fourth, the introduction of sex education in schools and educating the children about good touch and bad touch is significant. In 2008-09 Parliamentary committee report mentions the introduction of sex education, but it never materialized. It has to be implemented.
Though the Act can be amended and faster implementation can provide relief to the Children, Awareness and sensitization of people is equally important to prevent the crime itself.
What is the POCSO Act?
The Protection of Children from Sexual Offences Act (POCSO Act) enacted in 2012. The Act was formulated to effectively address sexual abuse and sexual exploitation of children and pornography.
In 2019, The Act has been amended. The amendment contains provisions for enhancement of punishments for various offences, provides security and dignified childhood for a child.
Salient provisions of the Act:
First, The Act defines Child as any person below eighteen. The Act remains gender-neutral.
Second, The Act also defines different forms of sexual abuse: including penetrative and non-penetrative assault, as well as sexual harassment and pornography.
Third, The Act deems a sexual assault to be “aggravated”: If the abused child is mentally ill or the abuse is committed by a person in a position of trust or authority like a family member, police officer, teacher, or doctor.
Fourth, The law provides for relief and rehabilitation as soon as the complaint is made. The Special Juvenile Police Unit or the local police will make immediate arrangements for the care and protection of a child. The arrangements such as obtaining emergency medical treatment for the child and placing the child in a shelter home etc.
Fifth, The Act has provisions for Mandatory reporting. This casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence. If he fails to do so, he may be punished with six months’ imprisonment and/ or a fine.
Sixth, The Act provides for the establishment of Special Courts for the trial of offences under the Act.
Lastly, The Act prescribes a maximum punishment of life imprisonment or the death penalty. The Act provides a mandatory minimum punishment of three years.
What are the Safeguards available to Children?
- The Act has provisions for avoiding the re-victimisation of the child at the hands of the judicial system.
- The accused has to be away from the child at the time of testifying.
- The Act mentions special courts have to conduct the trial without revealing the identity of the child. And also in a child-friendly manner as much as possible.
- The child may have a parent or other trusted person present at the time of testifying. The Child can also call for assistance from an interpreter, special educator, or other professional while giving evidence.
- The cases must be disposed of within one year from the date the offence is reported.
Limitations of POCSO Act:
- The POCSO Act is only applicable to child survivors and adult offenders. For example, If two children have sexual relations with each other, or in case a child perpetrates a sexual offence on an adult, the Juvenile Justice (Care and Protection of Children) Act, 2000, will apply.
Ensuring accountability in the new Electricity (Rights of Consumers) Rules, 2020
- Synopsis: the consumer protection rules will not guarantee better power supply quality without strong accountability provisions.
- Many states in India are not able to provide a quality supply of electricity, specifically to rural and small consumers.
- To resolve this issue, recently, the Union Ministry of Power has promulgated the Electricity (Rights of Consumers) Rules, 2020. The rules provide the consumer with the rights of power.
- It is expected that the new Electricity (Rights of Consumers) Rules, 2020 will protect and empower electricity consumers’ rights.
Read more – Electricity Rules 2020 |ForumIAS Blog
What are the limitations of the Rules?
The following issues highlight the need for implementation of existing provisions in letter and spirit along with strong accountability provisions.
- First, Discoms are unable to provide quality supply. Reason for this is not a lack of rules or regulations but the lack of accountability mechanism to enforce them. For instance,
- Many rights provided in rules 2020 already exists in Standards of Performance (SoP) of various State Electricity Regulatory Commissions (SERCs).
- Second, the past efforts such as the draft National Tariff Policy, the proposed Electricity Act amendments, or various committee processes did not address the accountability concerns.
- Third, it is also doubtful that how Discoms will automatically compensate its consumers in the event of failure of power supply. Because, till now the availability of power supply is not monitored properly.
- Fourth, compensating consumers in the event of failure of power supply has serious financial implications. For example,
- In August 2020 rural areas received only 20 hours of supply. If existing regulations are followed it would cost hundreds of crores to discoms.
- Fifth, the new rules dilute the progressive mechanisms that exist in a few States. For example,
- As per the new rules faulty meters should be tested within 30 days of receipt of a complaint.
- However, states such as Andhra Pradesh, Bihar, and Madhya Pradesh have rules that mandate that such testing needs to be conducted within 7 days.
- Sixth, the rules that the Consumer Grievance Redressal Forum should be headed by a senior officer of the DISCOMS company is a regressive provision.
- Because it will reduce the number of cases that are decided in favour of consumers.
- It also questions the credibility of the new Electricity (Rights of Consumers) Rules, 2020.
- Seventh, some provisions are confusing and requires clarity. For example,
- The rules guarantee net metering for a solar rooftop unit less than 10 kW. But it is not clear whether solar rooftop unit above 10 kW can also avail net metering.
- This confusion will lead to unnecessary litigation which will increase investments costs in rooftop solar units.
- It will discourage medium and large consumers from opting an environment-friendly, cost-effective option.
What steps are required?
To ensure accountability, we need to consider implementing the following solutions,
- SERCs needs to be tasked to assess the SoP reports of DISCOMs and revise their regulations more frequently. Also, SERCs should be assisted in setting up public grievance mechanisms, to help consumers raise their concerns.
- Further, DISCOMs should be directed to ensure automatic metering at least at the 11 kV feeder level. This information should be available online.
- Apart from this, The Central Electricity Authority of India can also be directed to collect supply quality data from DISCOMs, publish data in the public domain and prepare analysis reports.
- Finally, the Central agencies too can support in independent surveys and nudge State agencies to enforce existing SoP regulations.
The enactment of the new Rules will not change the status quo. Governments, DISCOMs and regulators should demonstrate the commitment and the will power to implement existing regulations to make the new Electricity (Rights of Consumers) Rules, 2020 successful.
RERA 2016 protects the interest of Homebuyers
Synopsis: As compared to RERA 2013 act, the Real Estate (Regulation and Development) Act (RERA) 2016 was successful in empowering the home buyers. This has reduced the incidence of unfair trade practices in the real estate sector.
How RERA 2016 act was better than RERA 2013 act?
The RERA 2013 act had the following issues;
- It did not cover either “ongoing projects” or “commercial real estate”.
- Also, the minimum limit for registration of projects was so high that it excluded many projects from the coverage under law.
- These exclusions made the 2013 bill meaningless and harmful to the interests of home buyers.
However, the 2016 RERA act has fixed all the loopholes in the RERA act 2013,
- First, after a holistic review along with multiple stakeholder consultations both “ongoing projects” and “commercial projects” were included in the act.
- Second, the minimum limit for registration of projects was reduced to cover more projects. It reduced evasion under law.
How the Real Estate (Regulation and Development) Act (RERA) 2016 has contributed to the empowerment of consumers?
RERA act addressed the existing power gap in the real estate sector between buyers and promoters. It further empowered the consumers in the following ways.
- First, the real estate sector which was largely unregulated is now being regulated under RERA.
- Second, RERA along with demonetization and GST has reduced the use of black money in the real estate sector.
- Third, it has the mandatory rules of getting approval of competent authority for project plans.
- Also, according to the RERA act, the builder needs to register with a regulatory authority.
- This stringent regulation has ended the practice of selling real estate based on false advertisements.
- Fourth, to prevent fund diversion, Promoters are required to maintain funds of a specific project in separate bank accounts.
- Fifth, disclosure of unit sizes based on “carpet area” has been made mandatory. It has reduced the scope for unfair trade practices.
- Sixth, it promotes equity by making it mandatory for payment of “equal rate of interest” by the promoter or the buyer in case of default.
Federal issues in its implementation
RERA is a product of cooperative federalism. Though the Act was introduced by the Central government, state governments are empowered to notify the rules, appoint regulatory authorities and the appellate tribunals. Currently, RERA is notified in 34 states and Union territories.
However, the act is facing implementation-related issues in some states such as Maharashtra and West Bengal.
- First, in the case of Maharashtra, the state enacted its own law in 2013. The law was not consumer-friendly, and it has created a disadvantageous position for homebuyers in Maharashtra.
- However, the center repealed the state act and enforced the RERA act 2016 for the regulation of real estate sector.
- Second, in the case of West Bengal, the state government ignored RERA act 2016 and enacted its own state law (the West Bengal Housing Industry Regulation Act (WBHIRA)) in 2017.
- Even after multiple efforts by the Centre, West Bengal refused to implement RERA.
- Though there was a central law on the subject, Knowingly, the state government enacted WBHIRA in 2017.
- This act of WB government is a violation of constitutional principles and has been challenged in the court.
As SEBI is to securities market RERA will be to the real estate sector. RERA act 2016 will provide huge impetus to the growth of real estate sector while significantly contributing to the needs of Urban India.
Flawed understanding of triple talaq law is leading to its misuse
Synopsis– Faulty understanding of the triple talaq law i.e., Muslim Women (Protection of Rights on Marriage) Act of 2019, as well as the Islamic law on divorce is leading to misuse of the act.
Introduction- In the Muslim Women (Protection of Rights on Marriage) Act of 2019, a Supreme Court Bench led by Justice D Y Chandrachud observed that mother-in-law of the second respondent (wife) cannot be accused of the offence of pronouncement of triple talaq under the Act as the offence can only be committed by a Muslim man (husband). It clearly shows that the act is being misunderstood.
Background of the anti-triple talaq law-
- Anti-women divorce customs prevalent in pre-Islamic Arabia had been given a severe blow by the teachings of great social reformer Prophet Muhammad.
- On the basis that “old habits die hard”, unscrupulous men innovated ways and means to circumvent the Prophet’s noble teachings.
- One of these was the practice of triple talaq — repeating the word “talaq” thrice — which was believed to effect instant dissolution of marriage leaving no room for any reconsideration or reconciliation.
- Instead of defeating this innovation, law men of the time called it talaq-ul-bidat and declared it to be “sinful but effective”.
- This concept remained in Muslim societies for centuries across the globe.
- But due to its devastating effects on families and societies, country after country in Asia and Africa gradually abolished by legislation the detestable practice of triple talaq.
Situation in India-
India took a much longer time to follow suit. During British rule, courts kept this law alive as a “sinful but effective” form of divorce after calling it a concept “bad in theology but good in law.”
Post– Independence, some High Court judges like VR Krishna Iyer of Kerala and Baharul Islam of Assam tried to awaken the custodians of state authority to the need for its abolition.
Finally, the practice of triple talaq was outlawed in the Shayara Bano case of 2017. The anti-triple talaq Act of 2019 was the outcome of this judicial reform.
How provisions of Triple Talaq law are often misunderstood
- Misuse of Section 498A of the Indian Penal Code (cruelty to a woman by her husband or his relatives) was once acknowledged by the apex court and formalized some measures. But under feminist pressure, the measures were withdrawn.
- Anti-triple talaq law together with Section 498A is proving destructive for the families.
- For Instance, in one triple talaq case in Kerala, a lawyer of a woman included her husband’s mother in the FIR filed against her husband in reference to the said IPC provision.
- Kerala High Court had refused bail to the accused husband’s mother. The case went to SC where SC highlighted the faulty applications os the act, that
- There is no specific provision in Section 7(c), or elsewhere in the Act, making Section 438 inapplicable to an offence punishable under the Ac
- Section 7 of the 2019 act is particularly misunderstood. Many lawyer misbelief that it overrides the general provision for anticipatory bail under Section 438 of the Criminal Procedure Code.
- For example, after enactment of the act, a man accused in the Triple talaq case sought anticipatory bail in the Bombay High Court. Lawyer argued that the non-obstante clause in Section 7, makes CrPC provision inapplicable.
- However, Court rejected the argument and granted bail to the person.
- For understanding the common-sense fact that this Act is meant to discipline erring husbands only, the learned lawyers needed a learning session with the apex court.
The verdict of SC is a significant step towards preventing the misuse of the anti-triple divorce law.
Issue of privacy and Personal Data Protection Bill 2019
Synopsis– Present data-based technological development and Personal Data Protection Bill 2019 presents a unique challenge to the privacy of individuals.
Introduction Personal Data Protection Bill 2019 –
By Puttaswamy v India (2017) case, privacy was established as a fundamental right. In other cases, MP Sharma v. Satish Chandra (1954) and Kharak Singh v. Uttar Pradesh (1962), as well, Privacy rights were upheld by SC.
However, the development of global technology and implementation of the Aadhaar biometric programme in India have diluted the effect of these rulings. Now there is an urgent need to take a new look at the legal position of privacy in India.
As depicted by Aadhaar based technology and global social media platforms, data has become a new oil i.e., it has become a tool for economic and political gain. It created a stream of data protection legislations, globally. India is also trying to join the league by Personal Data Protection Bill 2019 (DPB).
In India, the Personal Data Protection Bill 2019 (DPB) is currently under consideration by a parliamentary committee. There are various issues in this bill that go against the privacy rights of individuals.
Commercial and Political consequences of the Data Protection Bill (DPB):
Data Collection related issues
- First- Bill will negatively impact the emerging technologies market of India dealing in creation, use, and sale of data that is valued at $1 trillion by 2025.
- Second- The bill requires digital firms who want to operate in India to obtain permission from users before collecting their data.
- Third– Bill also declares that users who provide data are, in effect, the owners of their own data and may control its usage or request firms to delete it.
- European internet-users are able to exercise a “right to be forgotten” and have evidence of their online presence removed.
- Fourth– The bill allows the government to use “critical” or “sensitive” personal data, related to information such as religion, to protect national interest.
- Fifth– Open-ended access to government could lead to misuse of data. Mr. B N Srikrishna, the chairmen of the drafting committee of the original bill, warned that government-access exemptions risk creating an “Orwellian state”.
Issues related to Establishment of Data Protection Authority (DPA)
- Bill aims to establish a Data Protection Authority (DPA), which will be charged with managing data collected by the Aadhaar programme.
- Authority will consist of chairperson and six committee members,
- Members will be appointed by the central government on the recommendation of a selection committee.
- Members will be selected from senior civil servants, including the Cabinet Secretary.
- The government’s power to appoint and remove members at its discretion provides it an ability to influence the independence of agency.
- Unlike similar institutions, such as the Reserve Bank of India or the Securities and Exchange Board, the DPA will not have an independent expert or member of the judiciary on its governing committee.
- The UIDAI, for its part, has a chairperson appointed by the central government and reporting directly to the Centre.
Issues related to government use of data for surveillance
There are instances that suggest, India is acquiring some features of a surveillance state.
- As stated by the Union Home minister recently, police used facial recognition technology to identify people after the anti-CAA protests and the Delhi riots.
- There is a high possibility that police was matching the video offstage with the database of Election Commission and e-Vahan, a pan-India database of vehicle registration.
Issue related to safety of data
There are instances of controversy where government has shown casual approach towards data safety and privacy of its citizens:
- First, Safety concerns were raised during aadhaar data collection, which stores biometric data in the form of iris and fingerprints which is a violation of right to privacy.
- Second instance was of Aarogya Setu contact-tracing app which was allegedly not able to protect the data provided by citizens.
- The Data Protection Bill is a unique opportunity for India, a country with some 740 million internet users. It would be a standard setter for privacy of individuals.
- Inclusive debate needs to take place in the Joint Parliament Committee and then in Parliament to examine the Data Protection Bill and promote transparency.
Shakti Act 2020 concerns
Context – The Maharashtra Shakti Bill, 2020, and the Special Court and Machinery for Implementation of Maharashtra Shakti Criminal Law, 2020 have been criticized by prominent women’s rights advocates for being “draconian.
More in news-
The two interconnected bills are the Maharashtra Shakti Criminal Law (Maharashtra Amendment) Act 2020 and the Special Court and Machinery for Implementation of Maharashtra Shakti Criminal Law 2020.
- The Bill is proposed to be enacted as Shakti Act, 2020.
What does the draft bill proposes?
- The draft Bill proposes to make changes to the Indian Penal Code, the Code of Criminal Procedure and the Protection of Children from Sexual Offences Act.
- The changes are proposed in existing sections of rape, sexual harassment, acid attack and child sexual abuse.
- The death penalty is proposed in cases which are heinous in nature and where adequate conclusive evidence is available and circumstances warrant exemplary punishment.
- The media is not allowed to report the name of a rape victim.
- The draft Bill proposes an additional law to deal with abuse of women on social media.
- Provisions for “false” information – The Bill proposes punishment in cases of false complaints and acts of providing false information regarding sexual and other offences against women with the intention to humiliate, extort and defame.
What are the concerns related to new laws?
- Patriarchal conception [Control by men] – The new will punish the filing of false complaints. This, according to the signatories, “perpetuates the patriarchal notions of viewing women with suspicion, as unworthy of being believed”
- This will only deter victims from reporting sexual offences.
- Improper investigation and trial– The 15 days’ time-frame will not be sufficient for gathering all evidence and will become an excuse for police to not conduct a proper investigation.
- A hurried investigation and trial, they said, is likely to lead to miscarriage of justice.
- Lacking in infrastructure required for effective implementation – Neither the police nor the courts have the infrastructure to comply with these timeframes. There are not enough prosecutors at trial courts and in high courts.
- The general perception is that since the laws have been made more stringent, so the rapists resort to extreme measures in a bid to destroy the evidence.
- The death penalty in the new law reduces both the reporting of sexual offences and of conviction rates.
- No clarity of ‘heinous in nature’ cases– The proposed bills does not define what cases would qualify as being “heinous in nature”, thus leaving it open to the interpretation of courts.
- The Bills’ content reflects the absence of a larger consultative process and lack of understanding of existing criminal laws.
- The Maharashtra government should focus on improving infrastructure.
- The two Bills should have been discussed with lawyers, activists, and academics working on women’s issues before they were passed by the state Cabinet.
Will Farm laws reduce Farmers income?
Context: The present farm laws alter the bargaining landscape in favour of the corporate players to the detriment of the farmers.
What is current issue with farm laws?
- The three recently enacted farm laws assented have led to a showdown between the peasantry and the Union government.
- No consultation undertaken by the central government at the time of promulgating the ordinances and then pushing the bills.
- Despite repeated demands of the oppositions to refer the farm bills to the standing/select committee for reconsideration and necessary consultation with all stakeholders.
- Present dispensation believes that its shock-and-awe methods are to be the main medium of governance.
- The Union government has bypassed the federal structure by legislating on subjects that exclusively fall within the domain of the state government under the state list of the Seventh Schedule of the Constitution.
What are the salient features of the bill?
- Reducing role of MSP: The farm laws open the field to an alternate set of markets/private yards, where the buyer will have no statutory obligation to pay the minimum support price (MSP).
- No fee: Markets/private yards will not be charged any market fee/levy. The agricultural sector will see the gradual shifting of trade from the APMC mandis to these private yards.
- Reduce APMC role: The shifting of trade to avoid payment of any levy/market fee by private players and the Food Corporation of India (FCI) will eventually witness the redundancy of the APMC mandis, leaving the famers at the mercy of the corporate sharks.
- Exclude the jurisdiction of the civil court: It will leave the farmers remediless and with no independent medium of dispute redressal mechanism. The farm laws empower the Sub-Divisional Authority (executive) to adjudicate on disputes between the farmers and traders.
- Increased bureaucracy: The increased bureaucratic control over the adjudication of disputes between the farmers and corporate players will open the floodgates for corruption and rent-seeking.
How the bills are anti-farmers?
- There are several pro-corporate and perceived anti-farmer provisions in the farm laws.
- The global experience across agricultural markets demonstrates that corporatisation of agriculture without a concomitant security net in the form of an assured payment guarantee to the farmers results in the exploitation of farmers at the hands of big business.
- The primary cause for concern is the systematic dismantling of the APMC mandis which have stood the test of time and have provided farmers the remuneration to keep themselves afloat.
What needs to be done?
- The legality of laws should be expeditiously decided by the Supreme Court to halt the central government’s repeated encroachment on states’ rights.
- There is need of robust system to annually re-calculate the MSP keeping in mind the rising input costs of diesel, fertilisers, etc to make farming a viable and lucrative vocation.
- A statutory regulator in the field of agriculture akin to regulators in other fields would fill the gap to address information access and market distortions.
The three legislative nails in the farmer’s aspirations might lead to a bitter harvest.
Draft Indian Ports Bill,2020
Source: Click here
News: Ministry of Ports, Shipping and Waterways has circulated draft of Indian Ports Bill 2020 for public consultation which will repeal and replace the Indian Ports Act, 1908.
- Aim: To enable the structured growth and sustainable development of ports to attract investments in the Port sector for optimum utilisation of the Indian Coastline by effective administration and management of ports.
Key Provisions of the Bill:
- Constitution of Maritime Port Regulatory Authority
- Formulation of the National Port policy and National Port plan in consultation with Coastal State Governments, State Maritime Boards and other stakeholders.
- Formulation of specialised Adjudicatory Tribunals namely Maritime Ports Tribunal and Maritime Ports Appellate Tribunal to curb anti-competitive practises in the port sector and act as a speedy and affordable grievance redressal mechanism.
Karnataka’s cow protection bill
Context: The Karnataka’s cow protection bill, like similar laws in other states affects rural economy.
- Recently, Karnataka state’s Vidhan Sabha passed the contentious cattle protection bill that had been passed by the state assembly 10 years ago which could not enter the statute book because the governor refused assent.
What are the issues involved?
- Lack of debate: The Speaker did not give the opposition adequate time to voice their opinion.
- Disturbs existing network: The relationship between the farmer and the butcher is threatened as witnessed in similar stares like Uttar Pradesh.
- Indiscriminate powers to law agency: The proposed law stipulates a prison term of three to five years and fines ranging from Rs 50,000 to Rs 5 lakh for purchasing or disposing of cattle for slaughter and gives the police sweeping powers to search premises and vehicles.
- Affects farmers whose livelihood is dependent on Livestock: the cow becomes virtually uneconomical for the farmer after eight years when its milk output falls. Also, such animals along with male cattle not required for draught and breeding purposes.
- Misuse of law: As observed by Allahabad High Court, The Act is being used against innocent persons.
ISSUE OF INTERFAITH MARRIAGES AND LAWS IN INDIA
Context: The Uttar Pradesh government has cleared an ordinance that enables the state to police and punish inter-faith marriages with “the sole intention of changing a girl’s religion”.
|Important provisions of Prohibition of Unlawful Conversion of Religious Ordinance, 2020:|
Why Uttar Pradesh drafted such an ordinance?
- In the past few months, cases of alleged “love jihad” have been reported from different parts of the state, especially eastern and central UP especially Lakhimpurkheri.
- a group of parents from a particular locality in Kanpur had complained that their daughters are being allegedly trapped by Muslim men
- In some cases, girls refused to accept that they were tempted into marriage.
Criticisms against the law
Many critics of the law have put forward a few issues regarding the law:
- Allowing the police to examine subjective “intentions” of men and women entering a marriage veers into thought control — and sets the law up for rampant abuse.
- Law against fundamental rights: By clearing the ordinance, the state government has trespassed the fundamental right to marry guaranteed under Article 21 of the Constitution.
|What is the term ‘Love Jihad’ or ‘Romeo Jihad’?:|
Anti-conversion law at central level:
Central government proposed various bills but none of them passed and became a law. They are:
- Indian Conversion (Regulation and Registration) Bill 1954
- Backward Communities (Religious Protection) Bill 1960
- Freedom of Religion Bill in 1979
In 2015, the Law Ministry said passing of any law on religious conversion is purely a “State subject” and Central government has no role in it.
Is Uttar Pradesh being the only state to initiate law for forceful conversion?
- No, after the central government failed to pass 1960 bill, Odisha government moved on and passed the first anti-conversion law in 1968
- After that so far 10 states have had passed anti-conversion laws in India.
- The Himachal Pradesh Freedom of Religion Act, 2019, and the Uttarakhand Freedom of Religion Act, 2018, both prohibit conversion by misrepresentation, force, fraud, undue influence, inducement, allurement and ‘by marriage’.
But Uttar Pradesh has become one of the first State to pass forcible conversion only during Interfaith marriages as special legislation. States such as Haryana, Madhya Pradesh, and Karnataka have also sought to bring such legislation.
- It simply means the matrimonial relation between individuals who follow different religious faiths.
- Marriage between the same faiths has been governed by the Hindu Marriage Act 1955, Muslim personal Law. But to rectify and include interfaith marriages Centre passed the Special Marriage Act 1954.
- Special Marriage Act considers Interfaith Marriages as secular.
|Few important provisions of the Special Marriage Act of 1954:|
Judicial pronouncement regarding interfaith marriages and forcible conversions:
- The Rev Stanislaus vs Madhya Pradesh case: Supreme Court said Article 25 does provide freedom of religion in matters related to practice, profess and propagate, but the word propagate does not give the right to convert and upheld the laws prohibiting Conversion through force, fraud, or allurement.
- Based on the above case it is clear that forcible conversion or conversion through fraud and allurement is against the Right to Freedom of Religion.
- Sarla Mudgal case: The court had held that the religious conversion into Islam by a person from non-Islamic faith is not valid if the conversion is done for the purpose of polygamy.
- Lily Thomas case: In this case Court observed that marrying another woman after converting to Islam is punishable under the bigamy laws.
- Hadiya Case: Supreme Court said that the right to marry a person of one’s choice is integral to Article 21 (right to life and liberty) of the Constitution
- Allahabad High Court, in the case, Noor Jahan Begum @ Anjali Mishra and another vs. State of U.P. and Others observed that one shouldn’t change one’s faith just for the sake of matrimony. As two persons professing different religions can marry under the Special Marriage Act.
- But in the most recent judgment, Allahabad High Court itself overturned its previous judgment, calling the decision “bad in law”. The division bench of the Allahabad high court said on November 11, that judgment does not take into account the right to life and personal liberty of mature adults.
Based on the judicial pronouncements it is clear that the Right to marry a person belongs to another faith is a Fundamental Right but that does not have to be associated only with personal laws or religious conversions. It is the Right of the individual’s personal liberty to involve in Interfaith Marriage either by the Special Marriage Act of 1954 or by Personal laws (after getting himself converted).
Govt. seeks comments on draft Industrial Relations Code rules
News: Union Labour and Employment Ministry has published the draft rules framed under the Industrial Relations Code,2020.
- Industrial Relations Code combines and simplifies relevant provisions of three Central Labour Acts: Trade Unions Act,1926, the Industrial Employment (Standing Orders) Act,1946, and the Industrial Disputes Act, 1947.
Key Highlights of the Draft Rules:
- Exit provisions relating to retrenchment and others: Firms with 300 or more workers are required to seek approval from the government before 15-day notice for lay-offs, 60-day notice for retrenchment, and 90-day notice for closure.
- Electronic Methods of Communication: The rules propose electronic methods for most communication including maintenance of an electronic register for standing orders for all industrial establishments among others.
- Rules on Strike: The notice of strike has to be signed by the secretary and five elected representatives of the registered trade union and given to the employer, with a copy sent to the Chief Labour Commissioner (Central) electronically or otherwise.
- Reskilling Fund: The rules also proposed establishing a re-skilling fund for retrenched workers. Employers would have to electronically transfer an amount equal to 15 days of the last drawn wages of the retrenched workers or workers into an account maintained by the government within 10 days of the retrenchment.
- The fund so received shall be transferred by the Central Government to each worker or workers‘ account electronically within 45 days of receipt of funds from the employer and the worker shall utilize such amount for his re-skilling.
SC/ST (Prevention of Atrocities) Act: New developments and Evolution
SC has delivered a judgment in a recent appeal filed by a person booked under the SC/ST (Prevention of Atrocities) Act for allegedly abusing a Dalit woman in her house.
SC judgment on SC/ST (PoA)act
In this latest judgment related to the SC/ST Act, the Supreme Court has said:
- All types of intimidations or insults to persons belonging to Dalit or tribal communities will not be categorized as an offense under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
- Only insults specifically intended to humiliate the victim for his caste should be tried under the SC/ST act.
What was the case?
- Judgment was delivered in response to the hearing of an appeal filed by a person, booked under the Act for allegedly abusing a Dalit woman in her house.
- The court found that allegations against persons do not fulfill the basic ingredient under the Act that such humiliation should have happened in public view.
- Since the incident occurred within four walls in the absence of the public, he can be tried under ordinary criminal law but not under the SC/ST act.
Evolution of SC/ST (Prevention of Atrocities) Act, 1989
Article 17 of the constitution abolished the practice of untouchability. In line with the constitutional provisions under article 17 and Articles 14, 15 , the untouchability (offenses) Act, 1955 was passed in parliament. In 1976, the act was renamed as protection of the civil rights act.
But due to the ineffectiveness of previous acts, ‘Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989’ was enacted.
SC/ST Act, 1989
Scheduled Castes and Tribes (Prevention of Atrocities) Act 1989, also known as the SC/ST Act, was enacted to protect the marginalized communities against discrimination and atrocities.
- The Act lists various offenses relating to various patterns or behaviors inflicting criminal offenses and breaking the self-respect and esteem of the scheduled castes and tribes community, which includes denial of economic, democratic, and social rights, discrimination, exploitation, and abuse of the legal process.
- Under section 18 of the act, provision for anticipatory bail is not available to the offenders.
- Any public servant, who deliberately neglects his duties under this act, is liable to punishment with imprisonment for up to 6 months.
SC/ST Prevention of Atrocities (Amendment) Act, 2015
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 was introduced to make the act more stringent with the following provisions:
- It recognized more instances of “atrocities” as crimes against SCs and STs.
- It provided for the establishment of exclusive special courts and special public prosecutors to try offenses under the PoA Act.
- Act defined the term ‘wilful negligence’ in the context of public servants at all levels, starting from the registration of the complaint to dereliction of duty under this Act.
- If the accused was acquainted with the victim or his family, the court will presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise.
2018 SC judgment
Supreme Court in its Kashinath Mahajan judgment, introduced the following safeguards to the accused under SC/ST act.
- The bar on anticipatory bail under the Act need not prevent courts from granting advance bail if there is no merit in a complaint
- “Preliminary enquiry” to be conducted in all cases before registration of FIRs.
- The person can be arrested by an investigating officer, only if the “appointing authority” (in the case of a public servant) or the SP (in the case of others) approves such arrest.
2018 amendment to the Act
In 2018, in response to this dilution of the act and public uproar against it, Parliament introduced Section 18A to overturn safeguards introduced by the Supreme Court.
- Preliminary inquiry shall not be required for registration of a First Information Report against any person.
- No approval is required before the arrest of the accused under this act.
- It rules out any provision (Section 438 of the CrPC that deals with anticipatory bail) for anticipatory bail for the accused.
Prathvi Raj Chauhan case, 2020
In this case, the constitutional validity of section 18-A of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 was challenged.
- In this case, a three-judge bench of the Supreme Court of India has upheld the Constitutional validity of section 18-A.
- pre-arrest bail should be granted only in extraordinary situations where a denial of bail would mean a miscarriage of justice
- Anticipatory bail can only be given in exceptional cases by Courts and not in every case.
How effective has been SC/ST act?
Following are some of the figures that raise questions over the effectiveness of the SC/ST PoA Act:
- Increase in crimes: As per the NCRB report, 2019, Crimes against members of Scheduled Castes and Scheduled Tribes communities increased by 7.3% and 26.5% respectively in 2019.
- State-wise: Uttar Pradesh has the most number of cases of crime against SCs – 11,829 cases, which is 25.8% of the total such cases in the country followed by Rajasthan with 6,794 cases (14.8% of all cases), Bihar (14.2%), and Madhya Pradesh (11.5%).
- Conviction rate: According to a status report on the implementation of the PoA Act, released by the National Dalit Movement for Justice (NDMJ), over the decade prior to 2018, the average conviction rate under(Prevention of Atrocities) Act
for cases of atrocities against Dalits and Adivasis remained at 25.2% and 22.8% respectively.
What more should be done?
- Registration of Cases: Standard Operating Procedure (SoP) should be developed for filing and investigating cases so that there is no confusion or doubt among the investigators about the procedure to be followed.
- Training and Capacity building of judges, lawyers, and policemen is required in these types of cases
- Prosecution: Successful prosecution of genuine cases by the lawyers must be rewarded.
- Research: There is a requirement for research into the types of punishment, as an alternative to imprisonment that can prevent future crimes by individuals or communities.
As signified in the figures above, Laws alone cannot realize the vision of our constitution-makers to make India a country where everyone has equal rights, opportunities, and access to justice, it is only one of the steps required.
It requires the educational and economic advancement of the backward communities like SCs and STs in India and educational reforms all over the country so that root cause of the discrimination can be dealt with.
National Forensic Science University Bill 2020
National Forensic Science University Bill 2020
News: The Lok Sabha has passed National Forensic Science University Bill 2020, Rastriya Raksha University Bill, 2020 and Bilateral Netting of Qualified Financial Contracts Bill, 2020.
National Forensic Science University Bill, 2020: It establishes National Forensic Science University as an institute of national importance.
- The proposed university would facilitate and promote studies and research and help achieve excellence in the field of forensic science along with applied behavioural science studies, law, criminology and other allied areas.
Rashtriya Raksha University Bill, 2020: It seeks to provide for the establishment of the Rashtriya Raksha University, Gujarat.
- Key objectives of the University:
- providing dynamic and high standards of learning and research,
- providing a working environment dedicated to advancing research, education and training in the domain of policing.
|Additional Information: Bilateral netting: It refers to offsetting the claims arising from dealings between two parties to determine the net amount payable or receivable from one party to the other|
Bilateral Netting of Qualified Financial Contracts Bill, 2020: It seeks to provide a legal framework for bilateral netting of qualified financial contracts which are over the counter derivatives contracts.
Defence Acquisition Procedure 2020
Defence Acquisition Procedure (DAP) – 2020
News: The Defence Minister has unveiled the Defence Acquisition Procedure (DAP) – 2020
- Notify a List of Weapons/Platforms for Ban on Import: Relevant incorporation has been done in the DAP to ensure that NO equipment as mentioned in the list is procured ex import post timelines notified.
- New Category of Buy (Global – Manufacture in India): The new category incorporates ‘manufacture of either the entire/part of the equipment or spares/assemblies/sub-assemblies/Maintenance, Repair and Overhaul (MRO) facility for the equipment, through its subsidiary in India.
- Revised Offset Guidelines: The Offset guidelines have been revised, wherein preference will be given to manufacture of complete defence products over components and various multipliers have been added to give incentivisation in discharge of Offsets.
- Project management unit: Setting up of a project management unit (PMU) has been mandated to support contract management. The PMU will facilitate obtaining advisory and consultancy support in specified areas to streamline the acquisition process.
- FDI in Defence Manufacturing: Provisions have been incorporated like a new category ‘Buy (Global — Manufacture in India)’, to encourage foreign companies to set up manufacturing through its subsidiary in India.
- Enhancement in Indigenous Content (IC)
|Category||DPP 2016||DAP 2020|
|Buy (Indian-IDDM)||Min 40%||Min 50%|
|Buy (Indian)||Min 40%||Indigenous design — Min 50%|
Otherwise – Min 60%
|Buy & Make (Indian)||Min 50% of Make||Min 50% of Make|
|Buy (Global — Manufacture in India)||Min 50% of Buy plus Make|
|Buy (Global)||Min 30% for Indian vendors|
Labour Code on Occupational Safety, Health & Working Conditions, 2018
Labour Code on Occupational Safety, Health & Working Conditions, 2018
In News: Lok Sabha has cleared three labour code Bills viz the Industrial Relations Code Bill, 2020, Code on Social Security Bill, 2020 and Occupational Safety, Health and Working Conditions Code Bill, 2020.
Key Features of Labour Code on Occupational Safety, Health & Working Conditions, 2018
- Consolidation of laws: It will amalgamate 13 labour laws including the Factories Act, 1948; the Mines Act, 1952; the Contract Labour (Regulation and Abolition) Act, 1970 etc.
- Mandatory registration: All establishments covered by the Code must be registered with registering officers
- Advisory Bodies: The bill provides for the setting up of Occupat ional Safety and Health Advisory Boards by the central and state governments at the national and state level.
- Annual health check-up: It has been made mandatory in factories and its charge will be borne by the employers.
- Duties of employers: Appointment letters for all workers (including those employed before this code), underlying their rights to statutory benefits.
- Policy on Working Hours: Overtime work must be paid twice the rate of daily wages. Female workers, with their consent, may work past 7pm and before 6am, if approved by the central or state government.
- Leave policy: No employee may work for more than six days a week. Workers must receive paid annual leave for at least one in 20 days of the period spent on duty.
- Working conditions and welfare facilities: The employer is required to provide a hygienic work environment with ventilation, comfortable temperature and humidity, sufficient space, clean drinking water, and latrine and urinal accommodations.
Way Forward for Labour Code on Occupational Safety, Health & Working Conditions, 2018
- Reforms should be made with the consensus of all stakeholders -The workers, their unions, and employers and their associations etc.
- Any reform should strive to increase the trust between workers and employers.
- There is a need for a national policy for domestic workers at the earliest, to recognise their rights and promote better working conditions.
- To achieve the objective of training the 10 million apprentices, the government should form National Apprenticeship Corp by merging the Regional Directorate of Skill Development and the Entrepreneurship and Board of Apprenticeship Training.
Labour Code on Social Security & Welfare, 2017
In News: Lok Sabha has cleared three labour code Bills viz the Industrial Relations Code Bill, 2020, Code on Social Security Bill, 2020 and Occupational Safety, Health and Working Conditions Code Bill, 2020
Key Features of Labour Code on Social Security & Welfare, 2017
- Consolidation of multiple laws: It will replace nine social security laws, including Maternity Benefit Act, Employees’ Provident Fund Act, Employees’ Pension Scheme, Employees’ Compensation Act, among others.
- Universalizes social security: Social security has been extended to those working in the unorganised sector, such as migrant workers, gig workers and platform workers.
- Covers Agricultural workers: For the first time, provisions of social security will also be extended to agricultural workers also.
- National Social Security Board: It proposes a National Social Security Board which shall recommend to the central government for formulating suitable schemes for different sections of unorganised workers, gig workers and platform workers.
- Social security organisations: The Bill provides for the establishment of several bodies to administer the schemes. These include a Central Board to administer the provident fund schemes and national and state-level Social Security Boards to administer schemes for unorganised workers.
- Social security fund: The Bill proposes setting up a social security fund using corpus available under corporate social responsibility.
- Reducing employee PF contribution: The bill provides for an option for reducing provident fund contribution (currently at 12% of basic salary) to increase workers disposable income.
- Gig Workers: The bill states that the central or state government may notify specific schemes for gig workers, platform workers, and unorganised workers to provide various benefits, such as life and disability cover.
- Exemption: Under the bill the central government is empowered to exempt selected establishments from all or any of the provisions of the code and makes Aadhaar mandatory for availing benefits under various social security schemes
- Does not provide for uniform definition on “social security”.
- There is no dedicated central fund. The proposed corpus will be split into numerous small funds creating a multiplicity of authorities and confusion.
- There is no clarity on how the proposed dismantling of the existing and functional structures, such as the Employees’ Provident Fund Organisation (EPFO) with its corpus of ₹10 lakh crore will be handed over to a government.
Labour Code on Industrial relations, 2020
In News: Lok Sabha has cleared three labour code Bills viz the Industrial Relations Code Bill, 2020, Code on Social Security Bill, 2020 and Occupational Safety, Health and Working Conditions Code Bill, 2020
Objectives Labour Code on Industrial relations bill, 2020
- It aims to create greater labour market flexibility to encourage entrepreneurs to engage in labour-intensive sectors and to improve ease of doing business in India.
- It would consolidate three laws i.e. Trade Unions Act, 1926; Industrial Employment (Standing Orders) Act, 1946 and the Industrial Disputes Act, 1947.
Key Features of Labour Code on Industrial relations, 2020
- Contract workers: It seeks to allow companies to hire workers on fixed-term contract of any duration. Fixed term employment refers to workers employed for a fixed duration based on a contract signed between the worker and the employer.
- Reduced Threshold: Companies employing up to 300 workers will not be required to frame rules of conduct for workmen employed in industrial establishments. Presently, it is compulsory for firms employing up to 100 workers.
- Dispute redressal: It provides for setting up of a two-member tribunal (in place of one member) wherein important cases will be adjudicated jointly and the rest by a single member, resulting in speedier disposal of cases.
- Regulation for Trade Unions: Introduces a feature of ‘recognition of negotiating union’ under which a trade union will be recognized as sole ‘negotiating union’ if it has the support of 75% or more of the workers on the rolls of an establishment.
- Statutory benefits: Underlines that fixed-term employees will get all statutory benefits on a par with the regular employees who are doing work of the same or similar nature.
- Regulates strikes: As per the bill, the workers in factories will have to give a notice at least 14 days in advance to employers if they want to go on strike. Presently, only workers in public utility services are required to give notices to hold strikes.
- Re-skilling Fund: Proposes setting up of a “re-skilling fund” for training of retrenched employees. The retrenched employee would be paid 15 days’ wages from the fund within 45 days of retrenchment.
- The Industrial Relations Code of 2019 has curtailed the right to form unions and accord them powers of representation.
- It takes away the negotiating rights of trade unions as it would be difficult for any one group to manage 75% support.
- It will give tremendous amounts of flexibility to the employers in terms of hiring and firing, dismissal for alleged misconduct and retrenchment for economic reasons will be completely possible for all the industrial establishments employing less than 300 workers.
Labour Rights Codes on wages Bill
In News: Lok Sabha has cleared three labour right code Bills viz the Industrial Relations Code Bill, 2020, Code on Social Security Bill, 2020 and Occupational Safety, Health and Working Conditions Code Bill, 2020
Objectives of the Labour Rights Codes on wages Bill, 2019
- The bill seeks to consolidate laws relating to wages by replacing- Payment of Wages Act, 1936; Minimum Wages Act, 1948; Payment of Bonus Act, 1965 and Equal Remuneration Act, 1976.
- To formulate a statutory National Minimum Wage for different regions. The economic survey 2018-19 had also mentioned that a national mandatory minimum wage is a requirement.
Key Features of Labour Rights Codes on wages Bill, 2019
- Defined Wages appropriately: it removes the multiplicity of wage definitions leading to significantly reduce in litigation as well as compliance cost for employers.
- Uniform wages: The Bill stipulates to link minimum wages only to factors such as skillset and geographical location. This would bring down the number of minimum wage rates across the country to 300. These labour Codes seek to universalise the right to minimum wage of workers, presently available to only about 30% of the workforce engaged in the scheduled employments.
- Extends to all sectors: It seeks to universalizes the provisions of minimum wages and timely payment of wages to all employees irrespective of the sector and wage ceiling.
- National Floor Level Minimum Wage: To be set by the Centre and will be revised every five years, while states will fix minimum wages for their regions, which cannot be lower than the floor wage.
Concerns associated with Labour Rights Codes on wages Bill, 2019
- The bill does not define “who is a worker” clearly.
- The calculation of the level of minimum wage by an expert committee is at variance with ILO parameters.
- A ‘national minimum wage’ is a good idea, but its computation is cause for concern. Instead of a single national minimum wage, the bill proposes multiple minimum wage structure at different geographical zones.
FCRA 2010 to 2020: Foreign Contribution (Regulation) Act evolution
In News: Recently, Foreign Contribution Regulation (Amendment) Bill 2020 was introduced in the Lok Sabha. The Bill amends the Foreign Contribution (Regulation) Act, 2010.
What is FCRA?
- Foreign Contribution (Regulation) Act: It is an act of Parliament enacted in 1976 and amended in 2010 to regulate foreign donations and to ensure that such contributions do not adversely affect internal security.
- Coverage: It is applicable to all associations, groups and NGOs which intend to receive foreign donations.
- Who cannot receive foreign donations?
- Members of the legislature and political parties, government officials, judges and media persons are prohibited from receiving any foreign contribution.
- However, in 2017 the FCRA was amended through the Finance Bill to allow political parties to receive funds from the Indian subsidiary of a foreign company or a foreign company in which an Indian holds 50% or more shares.
- Registration: It is mandatory for all such NGOs to register themselves under the FCRA. The registration is initially valid for five years and it can be renewed subsequently if they comply with all norms.
- Purpose of Foreign contribution: Registered associations can receive foreign contributions for social, educational, religious, economic and cultural purposes. Filing of annual returns on the lines of Income Tax is compulsory.
- Ministry of Home Affairs (MHA) New Rules:
- In 2015, the MHA notified new rules which required NGOs to give an undertaking that the acceptance of foreign funds is not likely to prejudicially affect the sovereignty and integrity of India or impact friendly relations with any foreign state and does not disrupt communal harmony.
- It also said all such NGOs would have to operate accounts in either nationalised or private banks which have core banking facilities to allow security agencies access on a real time basis.
Key provisions of Foreign Contribution Regulation (Amendment) Bill 2020:
- Prohibition to accept foreign contribution:
- Include certain public servants in the prohibited category for accepting foreign contribution: These include: election candidates, editor or publisher of a newspaper, judges, government servants, members of any legislature, and political parties.
- The Bill adds public servants to this list. Public servant includes any person who is in service or pay of the government, or remunerated by the government for the performance of any public duty.
- Transfer of foreign contribution: Under the Act, foreign contribution cannot be transferred to any other person unless such person is also registered to accept foreign contribution.
- FCRA account: The Bill states that foreign contribution must be received only in an account designated by the bank as FCRA account in such branches of the State Bank of India, New Delhi. No funds other than the foreign contribution should be received or deposited in this account.
- Definition of persons: The FCRA 2010 allows transfer of foreign contributions to persons registered to accept foreign contributions. The term ‘person’ under the Bill includes an individual, an association, or a registered company.
- Regulation: The Act states that a person may accept foreign contribution if they have obtained a certificate of registration from central government or obtained prior permission from the government to accept foreign contribution. The bill makes Aadhaar mandatory for registration.
- Restriction in utilisation of foreign contribution: The Bill gives government powers to stop utilisation of foreign funds by an organisation through a “summary enquiry”.
- Reduction in use of foreign contribution for administrative purposes: The bill decreases administrative expenses through foreign funds by an organisation to 20% from 50% earlier.
- Surrender of certificate: The Bill allows the central government to permit a person to surrender their registration certificate.
Need for such amendments:
- To monitor Misuse of funds: In Parliament, the government alleged that foreign money was being used for religious conversions. For instance, in 2017, the government barred American Christian charity, Compassion International.
- To prevent loss to the GDP: An official report quantifying the GDP losses allegedly caused by environmental NGOs was prepared during NPA period, indicating a foreign conspiracy against India.
- To enhance transparency and accountability: The annual inflow of foreign contribution has almost doubled between the years 2010 and 2019, but many recipients of foreign contribution have not utilised the same for the purpose for which they were registered or granted prior permission under the said Act.
- To regulate NGO’s: Many persons were not adhering to statutory compliances such as submission of annual returns and maintenance of proper accounts.
Essential Commodities Amendment Bill, 2020
- Essential Commodities (Amendment) Bill, 2020 amends the Essential Commodities Act, 1955.
- Aim: To increase competition in the agriculture sector and enhance farmers’ income. It also aims to remove fears of private investors of excessive regulatory interference in their business operations.
Key Features of Essential Commodities (Amendment) Bill, 2020
- Regulation on food items: Under the Essential Commodities Act, 1955, the Government regulates the production, supply and distribution of certain commodities it declares ‘essential’ in order to make them available to consumers at fair prices. The bill removes cereal, pulses, oilseed, edible oil, onion and potatoes from the list of essential commodities.
- Stock Limit: It requires that imposition of any stock limit on agricultural produce must be based on price rise. A stock limit may be imposed only if there is: (i) a 100% increase in retail price of horticultural produce; and (ii) a 50% increase in the retail price of non-perishable agricultural food items.
Issues with Essential Commodities (Amendment) Bill, 2020
- Undermining Food security: Easing of regulation of food items would lead to exporters, processors and traders hoarding farm produce during the harvest season, when prices are generally lower, and releasing it later when prices increase. This could undermine food security since the States would have no information about the availability of stocks within the State.
- Deregulation of food items– As the bill removes cereals, pulses, oilseeds, edible oils, onion and potatoes from the list of essential commodities, it will deregulate the production, storage, movement and distribution of these important food commodities.
Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Bill, 2020
Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Bill, 2020 is aimed to provide a legal contract for farmers to enter into written contracts with companies and produce for them.
Key Features of Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Bill, 2020:
- Farming agreement: It provides for a farming agreement between a farmers and buyers (processors, wholesalers, aggregators, wholesalers, large retailers, exporters etc.) before the production or rearing of any farm produce.
- Pricing of farming produce: The agreement should mention the following:
- The price of farming produce
- For prices subjected to variation, a guaranteed price for the produce and a clear reference for any additional amount above the guaranteed price
- process of price determination
- Dispute Settlement: A farming agreement must provide for a conciliation board as well as a conciliation process for settlement of disputes.
- Protection to farmers: Farmers have been provided adequate protection. Sale, lease or mortgage of farmers’ land is totally prohibited and farmers’ land is also protected against any recovery.
Issues with Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Bill, 2020:
- No mechanism for price fixation: The bill provides protection to farmers against price exploitation, but does not prescribe the mechanism for price fixation. There are concerns that the free hand given to the private sector could lead to corpotirization of agriculture and farmer exploitation.
- Unorganised nature of the farm sector: Given the unorganised nature of the farm sector and farmers’ lack of resources for a legal battle with private corporate entities, there are concerns that formal contractual obligations will eventually be detrimental for poor farmers in the country.
- Lack of assurance about MSP: The bill doesn’t provide any assurance about Minimum Support Price (MSP) in the contract-farming. Critics have opined that there will be no declaration of MSP for all crops, determined by Swaminathan formula of C2 costs plus 50 per cent.
- Fear of intermediaries: Though the bill seeks to eliminate middlemen from the supply chain, the critics have raised concerns that middlemen will operate in the form of sponsors or farm service provider for contract-farming.
- Deprivation of farmers from their land: The legislation provides for “farming agreements” “with insurance or credit instrument”. This will entail credit linkage with mortgaging of farmer’s land. There are concerns that in case the contract suffers a financial loss, a farmer might have to pay debt through their land.
- Subjecting food security to world markets: There are concerns that MNC food giants and their Indian collaborators will integrate Indian agricultural production with world markets. This will reduce the freedom of farmers and undermine food security.
- Threat to India’s food and political sovereignty: There are concerns that companies will promote banned and dangerous GM seeds, terminator seed technology. This will erode India’s seed sovereignty and threaten food and political sovereignty.
Farmers’ Produce Trade and Commerce (Promotion and Facilitation), bill 2020
Farmers’ Produce Trade and Commerce (Promotion and Facilitation), bill 2020 aims to Break the monopoly of government-regulated mandis and provide farmers and traders freedom of choice of sale and purchase of Agri-produce.
Following are salient features Farmers’ Produce Trade and Commerce (Promotion and Facilitation), bill 2020:
- Trade of farmers’ produce:
- It allows intrastate and inter-state trade of farmers’ produce outside the physical premises of markets notified under State Agricultural Produce Marketing legislation.
- In addition to mandis, freedom to do trading at farmgate, cold storage, warehouse, processing units etc.
- Electronic trading: It proposes electronic trading in transaction platform for ensuring a seamless trade electronically.
- Abolition of cess or levy for sale: The farmers will not be charged any market fee, cess or levy for sale of their produce and will not have to bear transport costs.
Issues with Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020:
- Lack of regulatory oversight and reporting: The bill provides for non-APMC markets but does not provide any mechanism for its regulation. There are concerns that the lack of regulation might lead to unregulated trade detrimental to the primary purpose of providing market access to farmers. Further, it does not provide proper grievance redressal mechanism.
- Loss in revenue for states: The market fee, rural development fee, and arhatiya’s commission are big sources of revenue for some states. With states not permitted to levy market fee/cess outside APMC areas under the new legislation, Punjab and Haryana could lose an estimated Rs 3,500 crore and Rs 1,600 crore each year respectively.
- Fear over MSP: According to critics, the dismantling of the monopoly of the APMCs is the sign of ending the assured procurement of food grains at minimum support prices (MSP).
- Setting Price: APMC continues to set the reference price even for private players. In the absence of APMC, there will be no alternative for a large market that can actually set price signals. Global experience such as the French dairy producers and the dairy farmers’ co-operatives in the U.S suggest that buyer cartels will start fixing the market price.
Foreign Contribution Regulation amendment Act (FCRA), 2020
Background of Foreign Contribution Regulation Act (FCRA)
- The Foreign Contribution Regulation Act (FCRA) was first brought in by the Indira Gandhi government during the Emergency in 1976.
- Its aim was to protect the ‘sovereignty’ of India from ‘foreign hands’ at a time when global powers were engaged in a cold war.
- The law prohibited political parties, electoral candidates and even cartoonists from accepting foreign contributions.
- In 2010, the government made the renewal of registrations mandatory every five years and placed a 50% limit on administrative expenses.
What the Key provisions of Foreign Contribution Regulation (Amendment)Act, 2020
- Prohibition to accept foreign contribution: These include: election candidates, editor or publisher of a newspaper, judges, government servants, members of any legislature, and political parties.
- Transfer of foreign contribution:
- Under the Act, foreign contribution cannot be transferred to any other person unless such person is also registered to accept foreign contribution.
- FCRA registered organisations are barred from transferring foreign donations to smaller non-profits (a practice known as sub-granting) who often find it difficult to access donors on their own.
- Aadhaar for registration: The Act states that a person may accept foreign contribution if they have obtained a certificate of registration from central government or obtained prior permission from the government to accept foreign contribution. The bill makes Aadhaar mandatory for registration.
- Restriction in utilisation of foreign contribution: The Bill gives government powers to stop utilisation of foreign funds by an organisation through a “summary enquiry”.
- Reduction in use of foreign contribution for administrative purposes: The bill decreases administrative expenses through foreign funds by an organisation to 20% from 50% earlier.
- More power to government: FCRA registration can be suspended now after a summary enquiry and the period of suspension can extend up to a year (from 180 days earlier).