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Tuesday, November 01, 2022

Vision IAS Weekly Focus Magazine 2022 Tribals in India- Charting a Development Path in Hindi PDF

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The HINDU Notes – 01st November 2022

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aditya 16:57

📰 Anyone conducting ‘two-finger’ test on sexual assault survivors will be held guilty of misconduct: Supreme Court

“Any person who conducts the two-finger test in sexual assault cases shall be guilty of misconduct,” the Supreme Court ordered

•The Supreme Court on October 31 declared that any person conducting the invasive ‘two-finger’ or ‘three-finger’ vaginal test on rape or sexual assault survivors will be found guilty of misconduct.

•In a judgment, a Bench led by Justice D.Y. Chandrachud said the sole reason behind using the “regressive” test on traumatised sexual assault survivors is to see whether the woman or girl was “habituated” to sexual intercourse.

•Such a “concern” was irrelevant to fact whether she was raped or not.

•“Previous sexual experience is immaterial to the question of conduct,” Justice Chandrachud, who authored the verdict, held.

•The faulty logic behind the test was that “a woman cannot be believed when she said she was raped merely for the reason that she was sexually active”, the court said.

•“This so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimises and re-traumatises women who may have been sexually assaulted, and is an affront to their dignity. The ‘two-finger’ test or pre-vaginum test must not be conducted,” the Bench, also comprising Justice Hima Kohli, directed.

•The court said the legislature had amended the criminal law in 2013 to introduce Section 53A in the Indian Evidence Act.

•“In terms of Section 53A, the evidence of a victim’s character or her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent in the prosecution of sexual offences,” the court held.

•The Bench noted that the Ministry of Health and Family Welfare had issued guidelines for health providers in cases of sexual violence.

•“These guidelines have proscribed the application of the two-finger test,” the judgment noted.

•In the present case, the two-finger test was conducted a decade ago.

•“But it is regrettable that it [two-finger test] continues even today,” the court underscored.

•The court directed the Centre and the State Governments to ensure that the Ministry’s guidelines were followed to the letter.

•The court ordered that the guidelines be circulated to private and government hospitals.

•It said workshops should be held for health providers to prevent the test from being conducted on rape survivors. The court said the curriculum in medical schools should be revised. It ordered copies of the judgment to be handed over to the Health Ministry, which should be circulated to the health and home departments of the States. The home departments should circulate the judgment to the Director Generals of Police in the States.

•“Any person who conducts the two-finger test in sexual assault cases shall be guilty of misconduct,” the court ordered.

📰 Decentralise MGNREGS for better implementation, says govt. study

It calls for greater diversification of permissible work; flexibility should be given at the ground level to select the type of work as per broad categories; it also flags delay in fund disbursal and notes that wages were far below the market rate

•An internal study commissioned by the Ministry of Rural Development has argued for decentralisation of the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), allowing for more “flexibility” at the ground level.

•The Ministry recently made public the report of the sixth Common Review Mission, which surveyed seven States — Andhra Pradesh, Arunachal Pradesh, Karnataka, Nagaland, Gujarat, Jharkhand, Himachal Pradesh — and the Union Territory of Jammu and Kashmir in February to assess the implementation of all rural development schemes, including the MGNREGS.

•“There should be a greater diversification of permissible works instead of listing the types of permissible works, broad categories of works may be listed out and flexibility should be given at ground level to select the type of works as per broad categories,” the study noted.

•This is a problem also highlighted by activists and academics working in the field. “In the past few years, the fund management has been centralised instead of paying the gram sabhas an advance enabling them to decide the work they want to undertake. The gram sabhas can take into account the local conditions and the community’s requirement instead of chasing a target set for them,” said Professor Rajendra Narayanan of Azim Premji University, who co-authored a study on the role of the MGNREGS during the COVID-19 pandemic.

•The internal study also flagged the frequent delay in fund disbursal, and to deal with it suggested a “revolving fund that can be utilised whenever there is a delay in the Central funds”.

•The survey quoted various instances to underline this chronic problem. In Lower Subansiri district of Arunachal Pradesh, for example, the surveyors found that because of the delay in the material component, the beneficiaries ended up buying the construction material themselves to complete the projects. In Himachal Pradesh and Gujarat, the delay in wages was by three or four months and the material component by six months.

•The study also noted that the MGNREGS wages were far below the market rate in many States, defeating the purpose of acting as a safety net.

•At present, the minimum wage of a farm labourer in Gujarat is ₹324.20, but the MGNREGS wage is ₹229. The private contractors pay far more. In Nagaland, the wage is ₹212 per day, which does not take into account the difficult terrain.

•In Jammu and Kashmir, the rate is ₹214 per day. This, the study noted, “is lower than what is offered by private contractors which can go up to ₹600-₹700 per day”.

📰 Sequence of implementation, EWS quota outcomes

•The original intent of the reservation policy in newly independent India was to level the playing field for the most marginalised sections, those stigmatised and discriminated against on account of their birth into specific caste and tribal groups. While these groups were also economically deprived, that was not the main rationale for instituting compensatory discrimination in favour of these groups.

•Over the decades, the instrument of reservation has expanded to include more groups under its ambit, leading to furious debates both about the general principle of affirmative action and about which groups deserve to be beneficiaries. These disputes have resulted in complex legal cases, with the rulings providing the nuts-and-bolts mechanics that guide the implementation of the reservation policy on the ground.

•This article draws attention to a crucial impending implementation decision about the economically weaker sections (EWS) quota, and shows how the sequence of implementation would result to diverging outcomes.

•The reservation system in India takes two forms: vertical reservation (VR), which until 2019 was defined for stigmatised and marginalised social groups (SCs, STs and OBCs); and horizontal reservation (HR), applicable to cross-cutting categories such as women, people with disability (PWD), domicile, etc. As long as the VR system was social group-based, no individual was eligible for multiple VR categories, since no individual can belong to multiple caste or tribal groups.

•The 103rd Constitution Amendment Act in 2019, popularly known as the 10% quota for the so-called EWS, fundamentally altered the original raison d’être of reservations by opening VR to groups that are not defined in terms of hereditary social group identity (caste or tribe). EWS status is transient (that individuals can fall into or escape out of), but social groups are permanent markers of identity.

•While this meant that in principle, an individual could belong to two VR categories (say, SC and EWS), the amendment explicitly removed individuals who are already eligible for one VR (SC, ST, or OBC) from the scope of EWS reservations. As a result of this exclusion, an individual could still be only eligible for at most one vertical category.

•Exclusion of SCs, STs, OBCs from the scope of EWS reservation was immediately challenged in court on the grounds that it violated individual right to equality (that roughly corresponds to Articles 14-18 of the Indian Constitution).

•On the last day of hearings at the Constitutional Bench of the Supreme Court, the following “compromise” proposal was made by G. Mohan Gopal: do not revoke the amendment but interpret the language of the amendment in a way that does not exclude SCs, STs, OBCs from the scope of EWS reservation.

Overlapping VR categories and ambiguity

•Allowing for overlapping VR categories (such as SC and EWS, etc.) generates an important ambiguity under the current legal framework, most notably stemming from the ruling of the Indra Sawhney case ( 1992). Under this, any member of a reserved category who is entitled to an open-category position based on “merit” (examination) score should be awarded an open-category position, and not be slotted under a VR position. Technically, this implies that open-category positions must be allocated based on merit in the first step, and VR positions should be allocated to eligible individuals in the second step. This procedure is called “over-and-above” choice rule in the literature. This is to be distinguished from the “guaranteed minimum” rule which would guarantee a minimum number of positions to members of beneficiary groups, regardless of whether they enter through reserved or open (“merit”) positions.

•When VR categories are mutually exclusive, i.e., no individual can be a member of multiple vertical categories, it is completely immaterial in what sequence vertical categories are processed in relation to each other. However, if individuals can belong to two vertical categories, the relative processing sequence of vertical categories becomes very important, as Sönmez and his fellow economist Utku Ünver show in their 2022 paper.

•How will sequencing matter? EWS-first: Consider the scenario where EWS positions before other VR categories, immediately after the open category seats. In her 2019 paper with economist Rajesh Ramachandran, Deshpande shows that under the current income limit for EWS reservation, more than 98% of the population qualifies, i.e., almost everyone is eligible for EWS reservation. If EWS reservations are filled first, the outcome would be the same as treating EWS positions as open positions.

•This would effectively end up making the EWS reservation redundant. Since the richest applicants are not eligible for EWS, the actual outcome would be slightly different, but not a whole lot as the richest 2% may not even apply to public institutions where quotas are applicable.

•EWS-last: If EWS positions are allocated after all other VR positions are filled, this issue will not arise. Now, while all individuals with incomes lower than the EWS limit are equally eligible for EWS positions (which is still effectively all individuals), the system awards the EWS positions to eligible individuals who have highest merit scores. But since some of the higher score individuals from SCs, STs and OBCs would be admitted under their respective quotas, this sequencing will make EWS positions more accessible to members of forward castes.

On which sequence is better

•The purpose of this article is to demonstrate that two routes imply very different policy outcomes. We are highlighting the fact that overlapping VR categories lead to a major ambiguity (or loophole) in the system. If the objective is to make EWS equally applicable to the current VR categories, then EWS-first should be adopted with the recognition that this sequencing will effectively convert EWS into what are currently open category positions. If the objective is to minimally interfere with the amendment, then EWS-last should be adopted with the recognition that this sequencing will still tilt the EWS category in favour of forward castes. Since the impact of these two routes will be vastly different, it would be best if this subtle aspect of EWS reservation is carefully evaluated and integrated into the implementation of the policy.

•What if the current income limit of the EWS category is changed (lowered)? That would change the calculus somewhat since poorer individuals from all social groups (including non-SC-ST-OBC) would be eligible. In this scenario, the richer (above the presumed new income cut-off) SC-ST-OBC individuals will be eligible only for the social group-based VR positions. However, changing income limits is likely to open a whole new Pandora’s box, especially in the absence of reliable income data. Realistically, shifting the income cut-off for EWS seems unlikely.

•Therefore, the court would be well-advised to consider the implications of the implementation routes and to make sure there are no ambiguities, i.e., no loopholes. Ambiguities in reservation rules have led to court cases, leading to long delays in filling up positions. Given the enormity of the unemployment situation, as well as the importance of addressing social cleavages, the urgency of working out an optimal implementation strategy cannot be overstated.

📰 The ambiguity of reservations for the poor: unconstitutional or not?

THE HINDU NEWSPAPER IMPORTANT ARTICLES 01.11.2022

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The HINDU Notes – 29th October 2022

the hindu notes

aditya 12:39

📰 ‘One nation, one police uniform’ is ideal: Modi

Prime Minister says he is not imposing his views on States and adds that common uniforms will give a distinct identity to the police, ensure brand recall and quality gear

•Prime Minister Narendra Modi on Friday mooted the idea of ‘one nation, one police uniform’. He was addressing the State Home Ministers’ conference on internal security issues in Faridabad, Haryana.

•Mr. Modi said he was not imposing his views on States, but it was an idea worth deliberating on. He said police uniforms should have a brand recall just like the red-and-black post boxes in the country.

•“On the lines of ‘one nation, one ration card’; ‘one nation, one mobility card’; ‘one nation, one sign language’, we should think of ‘one nation, one police uniform’. This will benefit the police personnel as quality product will be available. The production of belts, caps and uniform will be on a mass scale,” he said.

•He added that just like post boxes could be identified from a distance even by unlettered persons, a common uniform would ensure a distinct identity to the police.

•Most police forces adorn shades of khaki, a few such as the police in Kolkata, Tamil Nadu and Goa don white uniforms.

Nagaland’s appeal

•Speaking at the conference, Nagaland’s Deputy Chief Minister and Home Minister Y. Patton said he hoped that the Armed Forces Special Powers Act (AFSPA) would be removed from more areas in Nagaland in future.

•He added that due to continuous improvement in the law and order situation in the State, the Centre had removed the AFSPA from 15 police station limits in seven districts and the State Police had put in place a special security plan in all the de-notified areas.

•Mr. Patton said: “We are sure that with the situation becoming even better, the Centre will consider bringing out more areas from the AFSPA in the near future and trusting the State government to take full responsibility of the security and law and order in all these areas.”

📰 21.4 lakh TB cases notified in India in 2021: Health Ministry

•India’s TB incidence for the year 2021 is 210 per 100,000 population – compared to the baseline year of 2015 (incidence was 256 per lakh population in India) and there has been an 18% decline which is 7 percentage points better than the global average of 11%, said the Health Ministry on Friday, while reacting to the World Health Organization (WHO) Global TB Report 2022, released on October 27.

•Stating that India had done better in major metrics as compared to other countries over time, the Ministry said the figures placed India at the 36th position in terms of incidence rates (from the largest to the smallest incidence numbers).

•According to the WHO report, an estimated 10.6 million people fell ill with tuberculosis (TB) in 2021, an increase of 4.5% from 2020, and 1.6 million people died from TB (including 187 000 among HIV positive people).

•“While the COVID-19 pandemic impacted TB Programmes across the world, India was able to successfully offset the disruptions caused, through the introduction of critical interventions in 2020 and 2021 – this led to the National TB Elimination Programme notifying over 21.4 lakh TB cases – 18% higher than 2020,’’ said the Ministry.

📰 The death penalty and humanising criminal justice

•As a conservative agency of the state, the Supreme Court of India is ordinarily expected to tread the path laid out by the written text of law and the binding precedents. But there do come some exceptional moments when, either because of inspired leadership or the burden of anomalous operations of criminal justice, the agencies feel free to break the shackles that force it to the conservative frame. It must go to the credit of the Chief Justice of India (CJI), Justice U.U. Lalit that as the 49th CJI of India, he has ushered in that rare moment by taking several bold initiatives to correct certain grave anomalies that have persisted in operation of the death penalty law. Even before taking up the office of the CJI, Justice Lalit had displayed unique sensitivity to the plight of the condemned ‘death-row prisoners’ in Anokhilal vs State of M.P. (2019), Irfan vs State of M.P., Manoj and Ors vs State of M.P. (May 2022), and impart corrections in the form of creative directions/guidelines. Such a corrective line of judicial decisions under the CJI’s leadership has continued in the Prakash Vishwanath and review petition order in the Mohd. Firoz cases.

•The empirical evidence and research findings contained in the Death Penalty India Report (2016) and the ‘Deathworthy’ report (Project 39A of the National Law University Delhi) came in handy to buttress the exceptional sensitivities of Justice Lalit. It is a happy augury that the CJI had the unique opportunity of teaming up with like-minded judges such as Justices P.S. Narasimha, S. Ravindra Bhat, Bela M. Trivedi, and Sudhanshu Dhulia.

On policies and uniformity

•The focus here is on reframing ‘Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences’, a decision authored by the three judge Bench (the current CJI and Justices Ravindra Bhat and Sudhanshu Dhulia, September 19, 2022).

•The decision stands out because of the thrust on the trial court’s death sentencing policies and the practice and desire to elicit, from a larger Bench, directions to ensure some kind of uniformity in the matter. Such a reference to a larger Bench would constitute yet another step in the direction of death penalty sentencing justice reform such as the legislative limitation flowing from Section 354(3) in the Code of Criminal Procedure; judicial limitation flowing from the ‘rarest of rare’ case; and ‘oral hearing’ after all the remedies to the condemned are exhausted.

•Justice Ravindra Bhat’s decision (concurred by the CJI and Justice Dhulia) has summed up the core issue that displays a special concern for the legislative mandate under Section 235(2) conferring a right to pre-sentence hearing after conviction and its endorsement by the full Bench ruling in Bachan Singh; the trial courts and the appellate court’s display of a conflicting patterns of compliances. As an ardent follower of the theory of binding precedents for a cause, Justice Ravindra Bhat did not stop at paying lip service to ‘rarest of rare’ case limitation, but also required the sentencing court to take the trouble of balancing the aggravating factors and mitigating factors, as per the full Bench ruling.

Sentencing incongruities

•With this foundational background and the context of the wide-spread discrepancies in the interpretation of the law, the following observations of the Court are significant: “It is also a fact that in all cases where imposition of capital sentence is a choice of sentence, aggravating circumstances would always be on record, and would be part of [the] prosecutor’s evidence, leading to conviction, whereas the accused can scarcely be expected to place mitigating circumstances on the record, for the reason that the stage for doing so is after conviction. This places the convict at a hopeless disadvantage, tilting the scales heavily against him.” (emphasis supplied). The three-judge Bench decision seems to have gone beyond sentencing incongruities when it observes: “This court is of the opinion that it is necessary to have clarity in the matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to formal hearing to the accused/convict on the issue of sentence.” (emphasis supplied).

•How is a real and meaningful opportunity to be transformed into reality? What would be the implications of such a ‘real hearing’ limited only to the matters of sentence?

•Such questions need answers that must be given by future society. It is significant that the sentencing lacunae pointed out by the three judge Bench have received a positive response from academics and the media. For instance, an editorial in this daily (September 20, 2022) said: “The Constitution Bench may come up with new guidelines under which the trial courts themselves can hold a comprehensive investigation into factors related to upbringing, education and socio-economic conditions of an offender before deciding the punishment...” Another leading daily, elaborating further on the subjective factors identified in Manoj and Ors. vs State of M.P., said: “trial court must take into account the social milieu, the educational levels, whether the accused had faced trauma earlier in life, family circumstances, psychological evaluation of a convict and post-conviction conduct, were relevant factors at the time of considering whether the death penalty ought to be imposed upon the accused”.

‘Quality’ of guilt

•The euphoria and appreciation generated by the bold initiative of the three judge Bench under the leadership of the CJI might have made a positive mark, but the future shape of the mission to humanise criminal justice will ultimately depend upon two things. The first is the composition of the larger Bench and the inclination of the judiciary to continue in its onward creative path, as the CJI retires on November 8. Second, the extent to which society is prepared to broaden the horizons of meaningful hearing, even to the earlier guilt determination stage. Hitherto, criminal liability is a product of the component of culpability/guilt and sanction/punishment. The consideration of these two components in isolation leads to a disconnect between the wrongdoer and his punishment or sentence. Should the ‘mitigating factors’ influence only the sentence, and not alter the nature and quality of the guilty mind, or the ‘guilt’ that constitutes the stock justification for punishment? How long and at what cost should we continue to ignore the ‘quality’ of the guilty mind of the ‘death row prisoners’ who suffer from severe to mild psychiatric disorders before and after crime (according to empirical evidence in chapter IV of the Deathworthy report?

•Perhaps, there will be some answers from leads given by western critical criminal law scholars who have already begun making a distinction between ‘early guilt’ that is regressive, prosecutory and punitive, and ‘mature guilt’ that is developmental and progressive. A recent article by Professor Alan Norrie, “Taking Guilt Seriously – Towards a Mature Retributivism” (On Crime, Society, and Responsibility in The Work of Nicola Lacey) has covered the trajectory of criminal justice humanisation succinctly.

📰 At COP27, move the needle on climate action

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THE HINDU NEWSPAPER IMPORTANT ARTICLES 29.10.2022

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Recent Update

Tuesday, November 01, 2022

Vision IAS Weekly Focus Magazine 2022 Tribals in India- Charting a Development Path in Hindi PDF

Vision IAS Weekly Focus Magazine 2022 Ethics of Emerging Technology in English PDF

The HINDU Notes – 01st November 2022

📰 Anyone conducting ‘two-finger’ test on sexual assault survivors will be held guilty of misconduct: Supreme Court

📰 Decentralise MGNREGS for better implementation, says govt. study

📰 Sequence of implementation, EWS quota outcomes

📰 The ambiguity of reservations for the poor: unconstitutional or not?

THE HINDU NEWSPAPER IMPORTANT ARTICLES 01.11.2022

Click Here to Like our Facebook page for latest updates and free ebooks

Saturday, October 29, 2022

GS SCORE Weekly Current Affairs October 2022 Week 4 PDF

The HINDU Notes – 29th October 2022

📰 ‘One nation, one police uniform’ is ideal: Modi

📰 21.4 lakh TB cases notified in India in 2021: Health Ministry

📰 The death penalty and humanising criminal justice

📰 At COP27, move the needle on climate action

VISION IAS Prelims GS-I Paper Analysis 2011-2022 PDF

THE HINDU NEWSPAPER IMPORTANT ARTICLES 29.10.2022

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