The HINDU Notes – 27th February 2020 - VISION

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Friday, February 28, 2020

The HINDU Notes – 27th February 2020

πŸ“° Cabinet approves surrogacy Bill

Bill will benefit widows and divorced women besides infertile Indian couples.

•The Union Cabinet on Wednesday approved the Surrogacy (Regulation) Bill, 2020, allowing a “willing” woman to be a surrogate mother and proposing that the Bill would benefit widows and divorced women besides infertile Indian couples.

•The Cabinet approved the Surrogacy (Regulation) Bill after incorporating the recommendations of a Rajya Sabha Select Committee, Minister Prakash Javadekar said at a press conference on Wednesday.

•The 15 major changes suggested by the 23-member committee to the Surrogacy (Regulation) Bill, 2019, also included deleting the definition of “infertility” as the inability to conceive after five years of unprotected intercourse on the ground that it was too long a period for a couple to wait for a child.

•“The Bill is aimed at banning commercial surrogacy and allowing altruistic surrogacy”, said Mr. Javadekar.

•Union Minister for Women and Child Development Smriti Irani added that only Indian couples can opt for surrogacy in the country.

•The Bill proposes to regulate surrogacy by establishing a National Surrogacy Board and State Surrogacy Boards and appropriate authorities in the States and Union Territories respectively. The proposed insurance cover for a surrogate mother has now been increased to 36 months from 16 months earlier.

πŸ“° When to call in the Army

Armed Forces are called in by civil power when public security is in “manifest danger” from an unlawful assembly

•The Armed Forces are called in by the civil power when public security is in “manifest danger” from an unlawful assembly which is refusing to disperse despite the efforts of police forces.

•The procedure for use of Armed Forces to disperse a mob bent on violence is provided in Sections 130 to 132 of the Code of Criminal Procedure (CrPC) of 1973. The Defence Service Regulations also act as an extensive guide to procedure for calling in the Armed Forces and also how they should operate while on duty, especially if they have to use fire power to restore peace.

Step-by-step process

•Chapter 10 of the CrPC under the title ‘Maintenance of Public Order and Tranquillity’ provide the step-by-step process for calling in the Armed Forces for help. The first provision in the chapter, Section 129, deals with the dispersal of a violent mob using civil forces.

•However, if this happen to fail, Section 130 steps in. The provision empowers the “Executive Magistrate of the highest rank,” in situations of gravest danger to public security, to write to “any officer-in-command of any group of persons belonging to the Armed Forces to disperse the assembly with the help of the Armed Forces under his command.” Rioters can also be arrested or confined in order to either disperse the mob or punish them in accordance with the law.

•The provision allows the Armed Forces officer-in-command concerned to comply with the Magistrate’s requisition for aid in a manner “as he thinks fit.” But in dispersing the unlawful assembly and restoring calm, the Armed Forces should use as “little force” as possible and causing as “little injury to person and property as may be consistent with dispersing the assembly and arresting and detaining such persons.”

Incommunicado situation

•Section 131 considers a situation in which the Executive Magistrate is somehow incommunicado and the riot situation is full-blown. In such cases, “any commissioner or gazetted officer of the Armed Forces may disperse the unlawful assembly with the help of the Armed Forces under his command.” But the officer has to comply with the instructions of the Magistrate once communication is established with the latter.

•Section 132 protects the officers and members of the Armed Forces from prosecution for acts done in good faith in the course of their duties to contain the riot.

•The Defence Service Regulations specifies that requisition for help from the civilian power to the Armed Forces officer should either be in writing or by telegram. The Forces should immediately come to the aid of the civil power for maintenance of law and order.

•The strength and composition of the force, the amount of ammunition, arms and equipment to be taken and the manner of carrying out the operations are matters for the Armed Forces alone.

πŸ“° Centre to revamp IT Act

New law to focus on stronger framework to deal with cybercrimes: Prasad

•The government will soon kick-start the process of revamping the nearly 20-year old Information Technology Act, 2000, with an aim to bring it in tune with the technological advancements with a focus on stronger framework to deal with cybercrimes, Minister for Electronics and IT Ravi Shankar Prasad said on Wednesday.

•An expert committee will be set up with members from the government as well as the industry for discussion on the new IT Act.

Changed ecosystem

•“Discussions are on in the department to revisit the IT Act... The IT Act is now 20 years old, and during this time, the IT ecosystem has developed beyond recognition. New technology has become very pronounced, the whole ecosystem of consumers has changed vastly and so have the challenges,” Mr. Prasad said.

•The Minister added that one of the major challenges was the scale of users that consume technology. “The biggest challenge is the number of consumers we have to handle. Plus, today, in India, technology has become the centre of digital payment and delivery of services such as GST and UPI. This also raises the question of misuse [of technology]. The vastness of these platforms was not even contemplated when the IT Act came into being,” he said.

•Mr. Prasad said that the new Act will also factor-in larger issues, including Supreme Court’s judgment on privacy.

•Noting that cyber issues have not been adequately responded to in the present IT Act, the Minister said the government may even look at including a separate chapter on cyber issues in the revamped Act.

•The Minister was speaking to reporters after his meeting with Microsoft CEO Satya Nadella, who was on a three-day visit to India. “We had a very good meeting, it was a courtesy meeting. I wish to thank him for his observations on Digital India, in particular digital inclusion...We also discussed a whole range of issues around IT,” he said with regards to the meeting that lasted for about 20 minutes.

•The Minister added that he had suggested to Mr. Nadella that Microsoft should consider adopting some digital villages and mentor them to make them beacons.

•“I am happy that he has readily responded,” he added.

•The Minister also pointed out that the issue of data sovereignty was discussed at the meeting. However, he did not share further details.

πŸ“° Cabinet gives clearance forTechnical Textiles Mission

Bid to take domestic market to $40 bn-$50 bn by 2024

•The Cabinet Committee on Economic Affairs (CCEA) has approved the setting up of a National Technical Textiles Mission at an total outlay of ₹1,480 Crore.

•The aim is to position the country as a global leader in technical textiles and increase the use of technical textiles in the domestic market.

•The Mission will be implemented for four years from 2020-2021 and will have four components, a release said.

•The first component will focus on research and development and innovation and will have an outlay of ₹1,000 crore. The research will be at both, fibre level and application-based in geo, agro, medical, sports and mobile textiles and development of bio-degradable technical textiles. Research activities will also focus on development of indigenous machinery and process equipment. The second component will be for promotion and development of market for technical textiles.

•The release said the Indian technical textiles segment is estimated at $16 billion which is approximately 6% of the $250 billion global technical textiles market. The penetration level of technical textiles in India varies between 5% and 10% against the level of 30% to 70% in developed countries. The Mission will aim at taking domestic market size to $40 billion to $50 billion by 2024.

•The third component will focus on export promotion so that technical textile exports from the country reach from the ₹14,000 crore now to ₹20,000 crore by 2021-2022 and ensure 10% average growth every year till the Mission ends. An export promotion council for technical textiles will be set up. The last component will be on education, training and skill development. The Mission will promote technical education at higher engineering and technology levels related to technical textiles and its application areas.

•A Mission Directorate will be operational in the Ministry of Textiles, the release added.

πŸ“° Trouble lurks behind the bilateral bonhomie

Trump’s visit has aided U.S.-India ties; it has set the frame too on the extremes to which each leader will go with the other

•When history looks back upon the evolution of the India-U.S. bilateral relationship through the 21st century, it will likely reflect a consensus that the world’s largest and oldest democracies held fast to a steady upward trajectory in their mutual engagement by capitalising on synergies and adroitly sidestepping roadblocks.

•That assessment is certainly applicable to the current phase in the ties that bind New Delhi to Washington. U.S. President Donald Trump’s visit to India this week has catalysed progress on outcomes in trade, defence, security and energy cooperation even as it has implicitly set parameters on how far either Mr. Trump or Prime Minister Narendra Modi will go to publicly or privately challenge each other’s governments on areas where they have faced criticism from other quarters.

•Consider first the momentum that Mr. Trump’s visit, a two-day extravaganza in Ahmedabad, Agra and New Delhi, has imparted. At the Motera Stadium in Ahmedabad, Mr. Trump largely stuck to script, praising the peaceful rise of India as an “economic giant” that has lifted 270 million people out of poverty in a decade. Segueing to the accomplishments of two successive Modi governments, the President went on to praise the rapid increase in Indians’ access to basic sanitation and cooking fuel and the construction of highways across the country. His comments were, in a sense, the mirror image of the words uttered by Mr. Modi at the ‘Howdy Modi!’ rally in Houston, Texas, in September 2019, when Mr. Modi went so far as to imply an endorsement of Mr. Trump for a second term in office when he said, “Ab ki Baar, Trump Sarkar”.

It’s not all hurrah

•It is at this juncture that the first wrinkle in the bilateral space becomes evident. For the best part of 20 years now, India has been a policy subject of bipartisan consensus in the U.S. government, including the White House and Congress. Yet, even as the extant polarisation of public opinion was further embittered through the election campaign and first term of Mr. Trump, a section of U.S. Democrats, traditionally seen as being the party whose support for India ran deeper, began to splinter away from the mainstream on this subject.

•From presidential nomination frontrunner Bernie Sanders, who said in recent days, “Instead of selling $3 billion in weapons to enrich Raytheon, Boeing and Lockheed, the U.S. should be partnering with India to fight climate change,” to Pramila Jayapal, Indian-American Congresswoman from Washington state, who was denied a meeting with Indian External Affairs Minister S. Jaishankar for criticising India’s violation of minorities’ right to religious freedom, there is a growing disenchantment with several major policy planks of the second Modi government, including its Kashmir policy and the Citizenship (Amendment) Act, or the CAA, and the National Register of Citizens.

•Now, both Mr. Trump and Mr. Modi appear politically unassailable in their respective countries presently, Mr. Trump enjoying a relatively high approval rating across multiple demographic cohorts and Mr. Modi riding strong on the wave of popular support that catapulted him to a landslide victory in the 2019 Indian general election. Yet at least as far as U.S. politics is concerned, oppositional forces to an incumbent tend to mount through a slow boil. It is quite likely that the apparent distaste for the consensus on globalisation and the economics of competitive advantage, as well as for the Bretton Woods institutions that mediated this process, grew steadily through the two terms of former U.S. President Barack Obama, and perhaps even his free-marketeer predecessor, George W. Bush.

•Similarly, if Mr. Trump continues to turn a blind eye to the deep-seated concerns over allegations of human rights and religious freedom rights violations the world over, including by the current Indian administration, that would only add to the litany of criticisms levelled at the 45th President, alongside charges relating to the abuse of presidential power, obstructing Congressional inquiries and disregarding conflicts of interest. Is it thus wise for India to take a hostile position toward certain U.S. Democrats in the confidence that Mr. Trump is going to be around for a second term to bat for India’s position on sensitive matters?

Glossing over violations

•Setting aside the potential stumbling blocks in the longer term, the optics of Mr. Modi playing host to an American President, including motifs of peace such as their visit to Sabarmati Ashram and the spinning of the charkha before a portrait of Mahatma Gandhi, appeared jarringly insensitive given that parts of the nation’s capital were in flames over riots that had distinctively communal undertones. Rampaging mobs in the north-eastern parts of New Delhi were attacking Muslims on the streets, vandalising their shops and setting vehicles and homes on fire, even as law enforcement officials appeared to be standing by mutely, perhaps outnumbered, watching the spectacle unfold.

•While Mr. Trump said in his press conference that he had discussed the CAA with Mr. Modi in their private parleys, he appeared satisfied with the assurance that the Prime Minister gave him that the issue was being dealt with. Over the longer term, this tactic of turning a blind eye to rights violations by the government of a trading partner may run afoul even of conservative elements in the U.S., including Republicans who have historically been unabashed about expressing support for religious freedom rights abroad.

Progress but also trade woes

•Second, let us consider the major areas of policies in the bilateral space, where there has been substantive progress. In defence manufacturing and trade Mr. Trump’s visit has nudged a deal for India to purchase $3-billion in U.S. military equipment toward completion, including the sale of Apache and MH-60 Romeo helicopters. On security cooperation, there is much to look forward to by way of improved coordination between the two countries’ governments in terms of joint military exercises and interoperability, as well as in fighting international crimes such as drug trafficking, narco-terrorism, human trafficking, organised crime and violent extremism.

•India is also set to significantly increase its energy imports from the U.S., particularly LNG, after ExxonMobil signed a deal to improve India’s natural gas distribution network.

•The only area where the full potential for bilateral cooperation may not have been realised is on trade. Mr. Trump’s sharp focus on reducing the U.S.’s trade deficits with major trading partners, including India, has made for a bumpy ride in South Block over the past few years. In an escalating tariff war, Washington first slapped duties on Indian – and global – steel and aluminium in 2018, then pulled India out of its Generalized System of Preferences (GSP) in June 2019. Unsurprisingly, India responded with counter-tariffs and now U.S. dairy and medical device exporters are feeling the pain. With the White House recently reclassifying India as a “developed country” to deny it any concessions on trade subsidy investigations, and with United States Trade Representative Robert Lighthizer cancelling a visit planned around the summit meeting, it appears unlikely that India will be returned to GSP or that even a limited trade deal might be announced any time soon.

•Putting the trade deal question in perspective, Alyssa Ayress, Senior Fellow for India, Pakistan, and South Asia at the Council on Foreign Relations, said that ultimately more economic openness would be to the benefit of not only India’s trading partners but itself.

•Indeed, given the ongoing slowdown in the Indian economy, it is meaningful reform that: improves the efficiency of land and labour allocation; makes investment in infrastructure attractive, and puts job creation front and centre on the policy agenda, all of which might keep India on a strong footing vis-Γ -vis its strategic partners and make it unnecessary for its leaders to yield to the temptation of stirring the toxic cauldron of communal politics.

πŸ“° When a court pronounces a verdict, without giving reasons

Non-speaking orders undermine judicial integrity

•In a highly unusual move, a nine-judge Bench of the Supreme Court resorted to a non-speaking order as it ruled affirmatively on the preliminary issue arising out of the Sabarimala review petition.

•The importance of a ‘reasoned decision’ in a constitutional democracy committed to the rule of law, besides being self-evident, cannot be overstated and this curious departure from the norm merits close analysis.

•Time and again, the Supreme Court has unequivocally endorsed and underlined the requirement of giving reasons in support of an order. It has often chastised subordinate institutions for their failure to supplement their orders with reasons.

Juristic basis

•The juristic basis for this has also been explored in a number of cases. In various decisions, the court has ruled that speaking orders promote “judicial accountability and transparency”; “inspire public confidence in the administration of justice”; and “introduce clarity and minimise the chances of arbitrariness”. In addition to being a “healthy discipline for all those who exercise power over others”, recording of reasons has been described by the Supreme Court as the “heartbeat of every conclusion”; the “life blood of judicial decision making”; and a cherished principle of “natural justice”. In his dissenting opinion in the Madhya Pradesh Industries Ltd case, Justice Subba Rao K. stated: “The condition to give reasons introduces clarity and excludes or at any rate minimises arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bound... A speaking order will at its best be reasonable and at its worst be at least a plausible one.”

•The need for a court to provide an intellectual substrate for its decisions is also implicit in the expression “pronounce judgment” in Supreme Court Rules, 2013. According to settled decisions, the same signifies “judicial determination by reasoned order”. However, when it came to applying the principle to its own verdict, the apex court has inadvertently devalued the importance of concurrent reporting of reasons. The court seems to have downplayed the fact that it may be coming across as inarticulate at best and indecisive at worst. Besides undermining institutional integrity, a decision’s authority as a binding precedent is also potentially compromised by this omission.

Culture of justification

•The term “transformative constitutionalism” has recently found currency in constitutional adjudication (Navtej Johar and Joseph Shine). The Supreme Court is yet to articulate a comprehensive theory of the concept but it has been fleshed out in other jurisdictions. For example, Pius Langa, former Chief Justice of the Constitutional Court of South Africa, argued that “transformative constitutionalism” entails a transformation of legal culture from one “based on authority” to the one “based on justification”. Karl Klare (the scholar who coined the term) posited that it may be legitimately expected of constitutional adjudication to “innovate and model intellectual and institutional practices appropriate to a culture of justification”.

•In the light of the above, it can be concluded that the practice of issuing non-speaking orders and giving post-hoc rationalisations later is an anathema to the principle of constitutional governance. Duty to give reasons is an incident of the judicial process and constitutional justice should not be a matter of afterthought.

πŸ“° Still no finality, the third time round

There are indications that the new Bodo accord does not spell closure of the statehood movement by Bodo groups

•The experiment of power sharing and governance under the Sixth Schedule of the Indian Constitution was expected to be the panacea of the ethno-nationalist identity questions in Northeastern States. Euphoria as well as anger over the third Bodo Accord have, however, held the mirror reflecting the complexities of exclusion of communities in such ethno-centric power sharing and governance model.

•The new Accord signed by the All Bodo Students’ Union (ABSU), United Bodo People’s Organisation and all the four factions of the insurgent outfit- National Democratic Front of Boroland (NDFB) with Delhi and Dispur on January 27 promises more legislative, executive and administrative autonomy under the Sixth Schedule to Bodoland Territorial Council (BTC) and expansion of the BTC territory in lieu of statehood. The Bodoland Territorial Area District (BTAD), the autonomous region governed by BTC, will be known as Bodoland Territorial Region (BTR) after demarcation of the augmented territory.

•The previous Bodo Accord signed by the erstwhile insurgent outfit, Bodo Liberation Tigers (BLT) with Delhi and Dispur on February 10, 2003 led to creation of the BTC as a new experiment of territorial autonomy under the Sixth Schedule. However, the constitutionally mandated legislative power of the BTC has been reduced to a farce as the Assam Governor has not given assent to any of the legislations passed by the BTC Legislative Assembly.

Activating faultlines

•Bodo groups have suspended their statehood movement, but the new Bodo Accord has triggered the intensification of the movement for Kamatapur State by organisations of the Koch-Rajbongshi community. The territory of the demanded Kamatapur State overlaps with the present BTAD, proposed BTR and demanded Bodoland. Clamour for Scheduled Tribe (ST) status by the Koch-Rajbongshis, Adivasis and several other non-ST communities has also grown.

•Deeper ethnic faultlines in an ethno-centric power sharing model will become exposed when the Koch-Rajbongshis and the Adivasis are granted ST status, as promised by the Modi government. For, the reservation of seats of BTC is for the STs and not exclusively for the Bodos. The new accord has no clear answer to such critical questions.

•In BTAD, the ST communities account for 33.50% of the total population; 2011 Census figures show that of the total 31,51,047 population in the BTAD, the ST population is 10,55,732. The Bodos account for over 90% of the ST population in the BTAD. The ST populations are an overwhelming majority in territories overseen by nine other autonomous councils under the Sixth Schedule in Assam, Meghalaya, Mizoram and Tripura.

•Such a demographic composition in the BTAD has allowed the space for political mobilisation of other non-Bodo communities and articulation of the campaign that the BTC is a faulty model as it allows the minorities to govern the majorities. The organisations of these communities have been demanding exclusion of villages with less than 50% Bodo population from the BTAD. Bodo organisations have a counter argument that non-Bodo is a political identity construction articulated to capture power in the BTAD by certain political forces. The new accord promises to increase the current strength of BTC to 60 from 40 but “without adversely affecting the existing percentage of reservation for tribal[s]”.

•The new accord promises to appoint a commission by the Assam government to look into the demands for inclusion of villages with ST majority and contiguous to the BTAD, and exclusion of villages which are contiguous to non-Sixth Schedule areas and have majority non-ST population. However, the core area of the BTAD will continue to have many villages with majority non-ST population which were included for contiguity.

•Framers of the Constitution perceived such complexities and prescribed constitutional provisions after elaborate debate in the Constituent Assembly on the Sixth Schedule. One such provision is the setting up of autonomous regions. Sub-paragraph 2 of the first paragraph of the Sixth Schedule provides that, “If there are different Scheduled Tribes in an autonomous district, the Governor may, by public notification, divide the area or areas inhabited by them into autonomous regions.” However, constitutional amendments were made following the previous Bodo Accord to ensure that this provision shall not apply in respect of the BTAD.

•The erstwhile Pawi-Lakher Regional Council was the only regional autonomous council in the country. Following upgradation of the then Lushai Hills district of Assam into a Union Territory in 1972, the Mizo District Council was abolished. In 1972, the Pawi-Lakher Regional Council was trifurcated first into three regional autonomous councils. These three councils were later upgraded to full-fledged Autonomous District Council under Sixth Schedule in the State of Mizoram.

•The provision of setting up regional autonomous councils under the Sixth Schedule can be explored to create the space for communities aggrieved by exclusion from the power-sharing model of BTC.

Pivot of mobilisation

•Euphoria among the Bodos over the accord is also fast evaporating with efforts to unite all the four factions of NDFB having turned futile; the factions are divided in two camps: one group with the present ruling party of BTC-Bodoland People’s Front (BPF), an ally of the ruling Bharatiya Janata Party in Assam and one group siding with the opposition party, the United Peoples Party Liberal backed by the ABSU. The new accord will be the pivot of political mobilisation in the BTAD during the forthcoming BTC elections due in April.

•A shift in the political equilibrium in the BTC resulting from a likely expansion of the ST list in Assam has the potential to keep the Bodos out of power in the BTC and push Bodo organisations to reviving their homeland demand. Peace will continue to be fragile in Assam’s Bodo heartland until an all-inclusive power sharing and governance model is evolved under the provisions of the Sixth Schedule.