The HINDU Notes – 10th February 2020 - VISION

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Monday, February 10, 2020

The HINDU Notes – 10th February 2020

πŸ“° India-Bangladesh rail link to be ready by 2021

Agartala-Akhaura line work under way

•The landmark rail line to connect the northeastern region with Bangladesh will be ready by the end of 2021, Union Minister Jitendra Singh said on Sunday.

•Mr. Singh said the completion of the line between Agartala in Tripura and Akhaura in Bangladesh would pave the way for the first train to run from the northeastern region to Bangladesh on the eve of the 75th anniversary of India’s independence in 2022.

•The line between Agartala and Akhaura would be completed before the end of next year, he said.

•Briefing journalists about some of the upcoming projects in the region, Mr. Singh, Minister for Development of North Eastern Region (DoNER), said his Ministry would bear the cost of the 5.46-km track on the Indian side, and the cost of the 10.6-km track on the Bangladesh side was being borne by the Ministry of External Affairs.

•The link will connect Gangasagar in Bangladesh to Nischintapur in India and from there to Agartala.

Land handed over

•Mr. Singh said land had been bought and handed over to the executing agencies in both countries, and Rs. 580 crore had been sanctioned for the work on the Indian side. The soil condition on the Indian side is soft, therefore the latest technology was being used. Around 600 skilled workers were working round the clock to complete the work.

•The train to Bangladesh will be one of the most glorious achievements of recent years, he said.

πŸ“° Four-fold jump in Li-ion batteries imports since 2016, govt. tells LS

India lacks manufacturing capacityand is the world’s largest importer

•India has quadrupled its imports of lithium-ion (Li-ion) batteries and more than tripled its import bill on the product, vital for powering a range of devices from cellphones to electric vehicles, from 2016-2018, the Union Science Ministry said in the Lok Sabha last Friday.

•Responding to a query, the Ministry said 175 million such batteries were imported in 2016, 313 million in 2017, 712 million in 2018 and 450 million from January 1, 2019, till November 30 of that year. The cost of these imports rose from $383 million (Rs. 2,600 crore approximately) in 2016 to $727.24 million (Rs. 5,000 crore) in 2017, $1254.94 million (Rs. 8,700 crore) in 2018 and $929 million (Rs. 6,500 crore) in 2019.

•Indian manufacturers source Li-ion batteries from China, Japan and South Korea and the country is among the largest importers in the world.

•The Indian Space Research Organisation (ISRO) manufactures such batteries but volumes are limited, and they are restricted for use in space applications.

•In June 2018, the Central Electro Chemical Research Institute (CECRI) in Tamil Nadu’s Karaikudi, under the Council of Scientific & Industrial Research (CSIR), and RAASI Solar Power Pvt. Ltd. signed a Memorandum of Agreement for transfer of technology for India’s first lithium-ion (Li-ion) battery project.

NITI initiative

•To promote indigenous development of such batteries, the Union Cabinet in 2019 approved a programme, called a National Mission on Transformative Mobility and Battery Storage, under the NITI Aayog to “drive clean, connected, shared, sustainable and holistic mobility initiatives.”

•China dominates the Li-ion battery market.

•Electric vehicles are expected to account for a significant share in the growth of the Li-ion battery demand in India, though reports say this is unlikely at least until 2025 because electric cars are still significantly costlier than their combustion-engine counterparts. The government has announced investments worth $1.4 billion to make India one of the largest manufacturing hubs for electric vehicles by 2040.

πŸ“° Seeking a more progressive abortion law

The Medical Termination of Pregnancy Bill doesn’t do enough to secure women’s choices and interests

•Recent reports have shown that more than 10 women die everyday due to unsafe abortions in India, and backward abortion laws only contribute to women seeking illegal and unsafe options. The Cabinet has recently approved the Medical Termination of Pregnancy (Amendment) Bill, 2020 (MTP Bill, 2020) which will soon be tabled in Parliament. It seeks to amend the Medical Termination of Pregnancy Act, 1971 (MTP Act) and follows the MTP Bills of 2014, 2017 and 2018, all of which previously lapsed in Parliament.

•The MTP Act divides its regulatory framework for allowing abortions into categories, according to the gestational age of the foetus. Under Section 3, for foetuses that are aged up to 12 weeks, only one medical practitioner’s opinion is required to the effect that the continuance of the pregnancy would pose a risk to the life of the mother or cause grave injury to her physical or mental health; or there is a substantial risk that if the child is born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. But if the foetus is aged between 12 weeks and 20 weeks, at least two medical practitioners’ opinions conforming to either of the two conditions are required.

•The MTP Act also specifies that ‘grave injury’ may be explained as the anguish caused by a pregnancy arising out of rape, or the anguish caused by an unwanted pregnancy arising out of the failure of a contraceptive used by a married woman or her husband. Beyond 20 weeks, termination may be carried out where it is necessary to save the life of the pregnant woman.

Issues with the current law

•Several issues arise from the current framework under the MTP Act. First, at all stages of the pregnancy, the healthcare providers, rather than the women seeking abortion, have the final say on whether the abortion can be carried out. This is unlike the abortion laws in 67 countries, including Iceland, France, Canada, South Africa and Uruguay, where a woman can get an abortion ‘on request’ with or without a specific gestational limit (which is usually 12 weeks).

•It is true that factors such as failure of contraceptives or grave injury are not required to be proved under the MTP Act. However, to get a pregnancy terminated solely based on her will, the woman may be compelled to lie or plead with the doctor. Thus, at present, pregnant women lack autonomy in making the decision to terminate their pregnancy, and have to bear additional mental stress, as well as the financial burden of getting a doctor’s approval.

Restrictive interpretation

•Second, the MTP Act embodies a clear prejudice against unmarried women. According to ‘Explanation 2’ provided under Section 3(2) of the Act, where a pregnancy occurs due to failure of any birth control device or method used by any “married woman or her husband”, the anguish caused is presumed to constitute a “grave injury” to the mental health of the pregnant woman. While the applicability of this provision to unmarried women is contested, there is always the danger of a more restrictive interpretation, especially when the final decision rests with the doctor and not the woman herself.

•Third, due to advancements in science, foetal abnormalities can now be detected even after 20 weeks. However, the MTP Act presently allows abortion post 20 weeks only where it is necessary to save the life of the mother. This means that even if a substantial foetal abnormality is detected and the mother doesn’t want to bear life-long caregiving responsibilities and the mental agony associated with it, the law gives her no recourse unless there is a prospect of her death.

•In 2008, the Bombay High Court was petitioned by Haresh and Niketa Mehta to allow them to abort their foetus that had been diagnosed with a heart defect in its 22nd week. While the case got nationwide attention, the Mehtas’ plea was turned down, and Niketa Mehta eventually suffered a miscarriage in the 27th week of her pregnancy.

•Several cases have followed since. Only in some of them has the Supreme Court allowed the termination of a pregnancy beyond 20 weeks, based on the advice by the Medical Board regarding the threat to the mother’s life.

•While the MTP Bill, 2020, is a step in the right direction, it still fails to address most of the problems with the MTP Act. First, it doesn’t allow abortion on request at any point after the pregnancy. Second, it doesn’t take a step towards removing the prejudice against unmarried women by amending the relevant provision. And finally, it enhances the gestational limit for legal abortion from 20 to 24 weeks only for specific categories of women such as survivors of rape, victims of incest, and minors. This means that a woman who does not fall into these categories would not be able to seek an abortion beyond 20 weeks, even if she suffers from grave physical or mental injury due to the pregnancy.

In case of foetal abnormality

•However, the Bill does make the upper gestational limit irrelevant in procuring an abortion if there are substantial foetal abnormalities diagnosed by the Medical Board. This means that even if there is no threat to the mother’s life, she would be able to procure an abortion as soon as a substantial foetal abnormality comes to light. While this is an important step and would have in the past helped many women who fought long battles in Court without recourse, it is crucial that it is accompanied by appropriate rules for the Medical Boards that guard against unnecessary delays, which only increase the risks associated with a late abortion.

•The Supreme Court has recognised women’s right to make reproductive choices and their decision to abort as a dimension of their personal liberty (in Mrs. X v. Union of India, 2017) and as falling within the realm of the fundamental right to privacy (in K.S. Puttaswamy v. Union of India, 2017). Yet, current abortion laws fail to allow the exercise of this right. While it is hoped that MTP Bill, 2020 will not lapse in Parliament like its predecessors, it is evident that it does not do enough to secure women’s interests, and there is still a long road ahead for progressive abortion laws.

πŸ“° Victim justice is two steps forward, one step back

Victim participation needs to be strengthened by providing private counsels with a greater say in the trial conduct

•The recent judgment in Rekha Murarka vs The State Of West Bengal (November 2019) has held that the victims’ private counsel cannot orally examine or cross-examine the witnesses. A deeper examination of the Court’s reasoning shows that the judgment is bound to have serious consequences for the victims’ right to participation. It is a setback to the developing jurisprudence on victim justice.

•Under our criminal justice system, victims find themselves removed from the proceedings. Their identities are reduced to being mere witnesses. The harm they suffer is reduced to being aggravating or mitigating factors at the time of sentencing. With the state appropriating their victimisation, the actual victims become mere stage props in a larger scheme.

•In 1996, the 154th Law Commission Report suggested a paradigm shift in India’s criminal justice system towards a victim-centric notion of justice. The Code of Criminal Procedure(Amendment) Act, 2009 partially accepted this suggestion and granted some rights to the victims of crime. The Act introduced victims’ right to a private counsel under Section 24(8). The Code of Criminal Procedure already allowed for pleaders engaged by private persons to submit written arguments with the permission of the court under Sections 301(2) and 302 allowed a person to conduct the prosecution with permission of the court. These sections were read together to partially secure the victims’ right to participation.

Some hits but more misses

•A slow but steady progress has been made towards securing justice for victims in this country. In the case of Delhi Domestic Working Women’s Forum v. Union of India (1994), the SC called for the extension of the right to legal assistance to victims of sexual assault at the pre-trial stages. In Mallikarjun Kodagali (Dead) ... vs The State Of Karnataka (2018), the Court accepted that under the criminal justice system, the rights of the accused far outweigh the rights of the victim. The Supreme Court not only called for the introduction of a victim impact statement in order to guarantee participation of the victim in the trial proceedings, but also reinstated the victims’ right to appeal against an adverse order.

•Despite these advances, the scheme of victim participation remains far removed from the ideals embedded in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power;India is a signatory. The Declaration requires that the views and concerns of victims should be allowed and considered at all appropriate stages without prejudice to the accused. Presently, the victims’ advocate has an extremely limited role to play wherein he “assists” the prosecutor rather than represent the interests of the victim before the court. This is manifest from Section 301(2) under which the advocate can only air his views and concerns, not to the court, but to the prosecutor and must act under his directions thereafter.

•The only substantial opportunity provided to a private counsel is after the closing of evidence when written arguments may be submitted to the court only after seeking the permission of the court. This stage, after the closing of evidence therefore, is the only stage legislatively recognised as “appropriate”. In contrast, the proceedings under the International Criminal Court (ICC) provides for victim participation at the stage of first, a challenge to the jurisdiction of the ICC; second, framing of charges; third, opening and closing statements; fourth, making a written submission wherever the personal interests of the victims are affected; and finally, for presenting witnesses to give evidence on issues relating to the personal interests of the victims.

A lost chance

•Effective and meaningful participation still eludes victims of crime. The Supreme Court in Rekha Murarka has missed the opportunity to forward the jurisprudence on victim justice and rectify the lacunae in our laws. Instead, the judgment goes against the jurisprudential current specified above.

•Indeed, the victim’s right to participation cannot be secured by restricting the rights of the accused. The right to participation, however, can be realised at appropriate stages without any such prejudice. Instead of exploring such a normative balance between the rights of the accused and victim, the judgment limits the rights of the victim by proceeding on a flawed understanding of the role and responsibilities of the victim’s advocate. According to the judgment, a victim’s advocate cannot be allowed the right to participate because, first, insistence by the victim’s counsel to examine a witness deliberately left out by the prosecution may weaken the prosecution’s case; second, the trial will derogate into a “vindictive battle” between the victim’s counsel and the accused; and third, a lack of experience on the part of the victim’s counsel may lead to lapses.

•The success of prosecution is dependent largely upon the victim’s participation in the trial. The primary role and responsibility of the victim’s advocate therefore, is to represent the personal interests of the victim by cooperating with the prosecution.

•Instead, the court assumes that unless the victim’s advocate is subservient to the prosecutor, either the prosecutor will be rendered ineffectual or the victim’s advocate will take over the role of the prosecutor.

•The judgment further assumes that prosecutions effectively take the victim’s needs into account and ignores the fact that the need for a private counsel arises precisely because intentional or unintentional prosecutorial lapses directly lead to injustice to the victims. The press is replete with instances of “failure of prosecution” leading to dismissal of the case or acquittals. Ingenuously, the court expects the victim’s counsel to make the prosecutor aware of any aspects that have not been addressed in the examination of witnesses or the arguments advanced by the public prosecutor. In the process, it assumes that the prosecutor will address such lapses.

•In any event, under the role currently envisaged in our criminal justice system, the public prosecutor cannot sufficiently take into account the interests, needs and requirements of the victims. The need instead, is to strengthen victim participation by providing private counsels with a greater say in the conduct of the trial without prejudicing the interests of the accused. The cause of victim justice would be greatly served, if the Supreme Court decide to revisit its reasoning and assumptions to appropriately amend this provision in light of the above.

πŸ“° A nation for the persecuted

India’s dismal treatment of the Rohingya must lead to a movement for an inclusive state, with an acceptable refugee law

•In his historic address to the Parliament of the World’s Religions in Chicago in 1893, Swami Vivekananda declared, “I am proud to belong to a nation which has sheltered the persecuted and the refugees of all religions and all nations of the earth.” It is ironical that a political party which conspicuously proclaims its allegiance to Swami Vivekananda has restricted by law, about 127 years later, citizenship to people on the grounds of both religion and nation.

•The Citizenship (Amendment) Act 2019, or CAA, 2019, passionately contested by people across the country, by placing these filters of religion and nation, reminds us urgently of the moral imperative of an expansive and humane refugee law. This must conform to what is finest in India’s civilisational ethos, and to the morality of India’s Constitution. This urgency is underlined further by the decision, in October 2018, of the Indian executive to send back seven Rohingya men — the Supreme Court of India refused to stop their deportation — who had been detained in Assam since 2012, to Myanmar.

•Looking back, it is pertinent to ask why Jawaharlal Nehru, an international statesperson and a leading moral voice in the community of nations, refused to sign the 1951 Refugee Convention relating to the Status of Refugees. Scholars suggest that whereas he was committed to the principles enshrined in the Convention, he was unwilling to legally bind the country to its obligations.

•The Convention first defines refugees as persons fleeing persecution on grounds of race, religion, nationality, social group or political opinion. Refugees get legal rights, most important of which are “non-refoulement”, which prevents states from sending back refugees to persecution in their home countries. They also get secondary rights, such as to education, work and property.

Policy and discrimination

•India has long argued that even without signing the Convention, in practice it is one of the leading refugee-receiving countries. Refugees include Sri Lankan Tamils, Tibetans from China, Chin minorities from Burma/Myanmar, and Hindus from Bangladesh and Pakistan. It may be legitimately asked that if in practice India has been hospitable to refugees, why does it need a refugee law which conforms to the Refugee Convention?

•The answer lies in discrimination in the recognition of refugees and the award of citizenship, embedded sometimes in laws and rules, and at other times in official practice. These include the morally indefensible, indeed shameful decision of the Indian government to send back Rohingyas to conditions which the International Court of Justice has recently deemed to be genocidal, and changes in passport rules even prior to the passage of the CAA which in effect discriminated between people on the basis of their religion.

•There are many problems with Indian law relating to refugees. The first of these is that our law does not distinguish between “foreigners” and “refugees”. This means that refugees depend on state discretion, indeed “benevolence” rather than inherent rights. The second is that these assume that the executive will act on principles of humanism and non-discrimination. This may have been true of an India led by Nehru. Governments which followed his have had mixed records. It is certainly not true of a government as we have today which is driven by right-wing ideology, which is hostile to Muslims, and which believes that India should be the natural home of persecuted Hindus, but not Muslims.

The Rohingya case

•In the absence of explicit recognition in Indian law of the category of refugees, or of their legally binding rights, even the guarantees of fundamental rights to equality and non-discrimination and humanitarian obligations did not prevent India from violating the core principle of non-refoulement, of not sending back a person to situations of persecution, such as those faced by Rohingyas. Let us rewind to the litigation in India’s Supreme Court, challenging the government’s proposed deportation of seven Rohingya in 2018. When seven repatriated Rohingya men were only hours away from the border with Myanmar, rights activists who has just come to know of this, made a dramatic urgent intervention in the Court, pleading that their being thrown mercilessly into a genocidal situation be stopped immediately.

•The Supreme Court bench, which included the then Chief Justice of India, Ranjan Gogoi, refused to stay their deportation, basing its ruling primarily on a brief Union government affidavit which claimed that Myanmar had accepted the refugees as “citizens” and the men had orally agreed to be repatriated. The Court unconscionably refused to stop the deportation despite the transparent unreliability of these claims, since the men did not have access to legal counsel nor to the UNHCR to determine whether their consent was freely expressed. Also, that they may have chosen the risks only because the only option they were given to deportation was to indefinitely remain in detention. The media later reported that these men had been detained in Myanmar for “illegal entry” and had been given the controversial National Verification Cards (that does not recognise their religion or ethnicity), not citizenship. We do not know what happened to them since.

Message from the ICJ verdict

•The moral culpability of these decisions, both of the Union government and the top court, are further illuminated by the recent unanimous judgment of the International Court of Justice on January 23 that concludes that the Rohingya face genocidal intent. The case against Myanmar was brought to the international court by a small west African Muslim nation, The Gambia. It rejected Myanmar’s civilian leader Aung San Suu Kyi’s testimony on behalf of her government, where she described the allegations brought by The Gambia as “an incomplete and misleading factual picture” of the prevailing conditions in Rakhine State.

•The world court warned the Myanmar military against any conspiracy to commit genocide, and directed Myanmar authorities to take steps to protect its minority Rohingya population from genocide.

•For the Indian government and the Supreme Court, this judgment should be a moment for both introspection and atonement. But this it will not be. The government has never referred to the Rohingya as refugees but as illegal immigrants, security threats and potential terror threats. They have not been included as eligible for citizenship under the 2019 amendment, because of their religion and country of origin. Instead, they are often the subject of communally charged political stigmatisation by the ruling party, amid calls for the expulsion from India of the desperately impoverished tiny population of around 40,000 Rohingyas; they are subsisting by picking rags and lowest-end labour in dismal shanties unsupported by the Indian state.

For a framework

•India’s treatment of the Rohingya, and the discriminatory CAA must compel Indians committed to India as a humane inclusive country to fight not just for the abrogation of the CAA-NRIC-NPR trinity — CAA-National Register of Indian Citizens-National Population Register — but also for India to bring in a refugee law which conforms to international conventions. This would, first, recognise eligible undocumented immigrants as refugees, based on evidence determined by due process of their persecution in their home countries. This would also assure them a set of binding rights. The most important of these is the guarantee that they would not be forced to return to the conditions of persecution, threatening their lives and liberty, which they escaped. The second is that they would be assured lives of dignity within India, with education, health care and livelihoods. Only then would India become the country which Swami Vivekananda was so proud of: a haven to the persecuted of the world, untainted by discrimination based on religion or nation.