April 2017
INDIAN POLITY
1. Right to access Internet cannot be curtailed, says SC
Why in news?
· Citizens have the right to access the Internet to gain information, wisdom and knowledge and their right cannot be curtailed unless it encroaches into the boundary of illegality.
· The fundamental right of expression includes “the right to be informed and the right to know and the feeling of protection of expansive connectivity” the Internet offers on the click of a button.
· A general prohibition on all online content about pre-natal sex determination will curtail the fundamental right to know of a genuine information-seeker.
Section 22
· The prohibition should kick in only if the content found online is violative of Section 22 (prohibition of advertisement relating to pre-natal determination of sex) under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (PCPNDT) Act of 1994.
· The Centre said the prohibition under Section 22 should be only on paid ads for sex determination or online advertisements masquerading as information.
Assurance to SC
· The three Internet search engines — Microsoft, Google India and Yahoo! India — gave their assurances to the Supreme Court that they would neither advertise nor sponsor advertisements violative of the PNPCDT Act.
· The trio said they had already appointed ‘in-house’ experts to spot illegal content and pulls them down.
· The centre said nodal officers had been appointed at State levels to keep tabs on the Net for offensive material contravening Section 22 of the Act.
· In case the nodal officers detect illegal online content, they would communicate with the search engine’s experts, which would take it off within the next 36 hours of receiving the information.
· These experts would then follow it up by providing the nodal officers concerned with an action taken report.
2. Can't ban MPs from other professions: SC
· Chief Justice of India said, finding no merit in a petition to ban legislators from practicing other professions, especially law.
· SC dismissed a petition filed by advocate Ashwini Upadhyay despite strong arguments raised by the latter that beedi or liquor barons eventually become MPs and sit on committees to influence the destiny of their businesses.
· The Chief Justice said he had a valid point, but the court could not frame policies.
· The petition that the restriction imposed on public servants and judges against engaging in other professions should apply to lawmakers.
3. Rail regulator sees green light
· The Centre cleared the decks for setting up an independent rail regulator.
· The move will improve the services offered to passengers, provide comfort to investors in the rail sector and will enhance transparency and accountability.
Rail Development Authority
· It will be based in Delhi with an initial corpus of Rs. 50 crore and will be set up through an executive order.
· The RDA will act within the parameters of the Railway Act, 1989 and only make recommendations to the Ministry which will take a final call on passenger and freight fares.
· The Authority’s primary functions will be to
o Recommend tariff “commensurate with costs,”
o Frame principles for social service obligation,
o Ensure a level playing field for stakeholders by suggesting policies for private investment.
o Fixing efficiency standards and
o Resolve disputes related to future concession agreements.
o It will also collect, analyze and disseminate information and statistics concerning the rail sector.
· The need for a regulator has been emphasized by various committees, including the Dr. Bibek Debroy Committee on Mobilization of Resources for Major Railway Projects and Restructuring of Railway Ministry in 2015, the National Transport Development Policy Committee (NTDPC) in 2014 and Expert Group under the Chairmanship of Dr. Rakesh Mohan in 2001.
4. Centre hands over to SC accreditation guidelines for NGOs, VOs
· The new guidelines framed for accreditation of nearly 30 lakh NGOs and voluntary organizations (VOs) in the country was submitted by centre to the SC
· Ministry of Rural Development framed the accreditation guidelines to regulate “manner in which the VOs/NGOs, which are recipient of grants, would maintain their account, the procedure for audit of the account, including procedure to initiate action for recovering of the grants in case of misappropriation and criminal action.
Nodal agency
· NITI Aayog has been appointed as the nodal agency for the purpose of registration and accreditation of VOs/NGOs seeking funding from the Government of India.
· The Aayog has been also tasked with maintaining of database systems to manage and disseminate information relating to NGOs/VOs.
· The existing portal at NITI Aayog (NGO-Darpan) shall be strengthened and aligned with accreditation-like functions which should also provide a snapshot of the NGO with regard to its ongoing and past work, particularly with respect to public and foreign funds so as to facilitate grant making authorities on the bona fides.
· The registration system should facilitate the seamless operation of the IT Act and the FCRA with respect to NGOs without the need for cumbersome and intrusive processes, which create mutual distrust and scope for misuse.
· The formulated guidelines demand grantee institutions to upload photographs in support of the performances and geo-tag assets to help monitoring of their activities.
Monitoring Progress reports
· The periodical progress reports from grantee institutions should be incorporated in the NGO scheme work flow on the website of the ministry, with the grantee institution making data entry under a login and password.
· The progress report in a processed form shall also be available in the public domain preferably with a GIS interface.
Criminal prosecution
· The Supreme Court had in January directed the government to audit nearly 30 lakh NGOs which received public funds but consistently failed to explain how they spent the money.
· The court had ordered that any NGO, found in the audit, to have cooked its books or indulged in misappropriation of the public funds should be subject to immediate criminal prosecution.
· Besides, the government should initiate civil recovery proceedings from these rogue NGOs.
· The court had demanded that the government file a compliance report by March 31, 2017.
· The judicial order was unprecedented as defaulting NGOs were till then only subjected to blacklisting by the government.
5. Suicide isn't a criminal act
Mental Healthcare Bill
· The new act decriminalizes suicide
· Instead of punishing him/her under Section 309 of the Indian Penal Code (attempt to suicide) with an open trial, a fine (even though in most cases a token amount) or imprisonment extending to a year, the new Bill reinvents the state in the role of a caregiver to the survivor of the suicide attempt.
· The goal is to prevent the person from trying the act again. One clause in the new Bill says the government “shall, in particular, plan, design and implement public health programmes to reduce suicides and attempted suicides.”
· However, the new Bill does not define suicide. Differences among suicide researchers as to what constitutes suicide remain.
· The Law Commission of India called Section 309 “monstrous”. Criminalization of suicide was not in tune with the global wavelength, the Supreme Court once said.
International scenario
· Unlike the Supreme Court’s Constitution Bench which concluded in the Gian Kaur case that the right to life does not include the right to die, international case laws tolerate even euthanasia.
· In McKay v. Bergstedt (1990), the Supreme Court of Nevada took the view that the desire of a patient for withdrawal of his respirator did not tantamount to suicide but was rather an exercise of his constitutional and common law right to “discontinue unwanted medical treatment”
· In Gian Kaur vs. State of Punjab, a five judge Constitutional Bench held that the "right to life" is inherently inconsistent with the "right to die" as is "death" with "life". In furtherance, the right to life, which includes right to live with human dignity, would mean the existence of such a right up to the natural end of life. It may further include "death with dignity" but such existence should not be confused with unnatural extinction of life curtailing natural span of life. In progression of the above, the constitutionality of Section 309 of the I.P.C, which makes "attempt to suicide" an offence, was upheld, overruling the judgment inP. Rathinam's case
6. Ethnic pressure and a fragile peace
The Naga question
· A rollback of the creation of new districts will obviously appease the Nagas in the hills.
· The Kukis got a new district, Kangpokpi (culled out from areas of Naga-dominated Senapati district.
· The UNC operates under the patronage of the National Socialist Council of Nagalim (Isak-Muivah) with which the Centre signed a “framework agreement” in 2015 to solve the decades-old Naga insurgency.
· Nagas want all Naga-inhabited territories in Manipur, Assam, Arunachal Pradesh and Nagaland to come under “Greater Nagalim” which all States barring Nagaland vehemently oppose.
· Nagas “shared sovereignty” condition won’t please the Meiteis in the valley who comprise roughly 60% of the population but live in a tenth of the area of Manipur.
· The hill tribes are roughly 40% of the population and they live in hill districts which are spread over 90% of Manipur’s total area.
· Even if the problem with the NSCN(I-M) is sorted out, there’s the NSCN (Khaplang) faction, which broke the ceasefire with the Centre, to contend with — and a host of other insurgent groups each fighting their own cause including the valley-based People’s Liberation Army.
· State government will be under pressure to get the Centre to repeal the Armed Forces (Special Powers) Act, which has been in place in the State since 1980.
Inner Line permit issue
· It’s a Meitei demand, that outsiders be allowed access to the State only by using Inner Line permits, and since they, despite being in a majority, already feel constricted in their own State, their voice has to be heard.
· On the other hand, the Nagas and Kukis, who have long complained that the administration is leaning towards Meiteis, are uneasy about it, and there have been widespread protests for and against it.
7. Electoral reforms: Crowd funding parties
· The government will soon launch the electoral bonds scheme to fund political parties as proposed in this year’s Budget.
· He defended the decision to lift the cap on corporate funds to political parties
· It was an improvement from the current situation where companies siphon funds from their business activities to fund parties with ‘unclean money.
· The amendments introduced in the Finance Bill abolished the funding cap of 7.5% of previous three years’ net profits under the Companies law.
· The reforms aimed at giving ‘some protection to identities (of donors), expanding the constituency of donors and encouraging clean money’ coming into politics.
· He suggested at least all major political parties should collect their donations through online payment.
· These changes need to be seen in conjunction with the amendments to the Foreign Contribution (Regulation Act) made last year to change rules that labelled an Indian company as a foreign source of funds if it had some NRI or foreign shareholders.
· Now when sectoral caps have been lifted in almost every sector to 74% and 100%, you won’t find ten donors in India who won’t get covered by that definition.
8. Changes in Motor vehicle act
· The Motor Vehicles (Amendment) Bill passed by the Lok Sabha will take a little more time to come into force, since it has not cleared the Rajya Sabha in the Budget session.
Changes
· The Centre assumes a direct role in the reforms.
· It will introduce guidelines that bind State governments in several areas, notably in creating a framework for taxicab aggregators, financing insurance to treat the injured and to compensate families of the dead in hit-and-run cases, prescribing standards for electronically monitoring highways and urban roads for enforcement and modernizing driver licensing.
Need of the Reforms
· There is a dire need to have clear rules and transparent processes in all these areas, since transport bureaucracies have remained unresponsive to the needs of a growing economy that is witnessing a steady rise in motorization.
· The bottleneck created by their lack of capacity has stifled regulatory reform in the transport sector and only encouraged corruption.
· The comprehensive recommendations of the Sundar Committee on road safety have been left on the back burner for nearly a decade.
Concerns
· There is some concern that it overly emphasizes the concurrent jurisdiction of the Centre at the cost of State powers.
· The IIT Delhi’s Road Safety in India report of 2015 points out that imposing stricter penalties tends to reduce the level of enforcement of road rules.
· The amendments to the MV Act set enhanced penalties for several offences, notably drunken driving, speeding, jumping red lights and so on, but periodic and ineffective enforcement, which is the norm, makes it less likely that these will be uniformly applied.
· Without an accountable and professional police force, the ghastly record of traffic fatalities, which stood at 1,46,133 in 2015, is unlikely to change.
· State governments must prepare for an early roll-out of administrative reforms prescribed in the amended law, such as issuing learner’s licences online, recording address changes through an online application, and electronic service delivery with set deadlines.
· Indeed, to eliminate corruption, all applications should be accepted by transport departments online, rather than merely computerizing them.
· Protection from harassment for good Samaritans who help accident victims is something the amended law provides, and this needs to be in place.
9. Mental health bill
· The Mental Healthcare Bill approved in the Lok Sabha following Rajya Sabha approval in August 2016.
· It aims to provide for mental healthcare and services for persons with mental illness and ensure these persons have the right to live a life with dignity by not being discriminated against or harassed.
· The Bill defines “mental illness” as a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognize reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs.
· But it does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterized by subnormality of intelligence.
· It marks a paradigm shift in the care and treatment of persons with mental illness in India.
· Instead of viewing persons with mental illness as objects of fear, pity and charity, the new Bill recognizes them as citizens with health rights, including the right to quality mental health care.
· A person with mental illness shall have the right to confidentiality in respect of his mental health, mental healthcare, treatment and physical healthcare.
· The photograph or any other information pertaining to the person cannot be released to the media without the consent of the person with mental illness.
· It will repeal the existing Mental Health Act, 1987.
Treatment gap
· 150 million Indians need treatment for mental illness but nearly 80-90% receive NO treatment (so-called treatment gap).
· We spend less than 1% of the public health budget on mental health although mental health problems constitute nearly 13% of the health burden.
· Recognising this historic neglect, the Bill makes provision for universal access to a range of mental health-care services in the community, at the district level, through the public health system.
· The Bill also makes it compulsory for insurance companies to include mental illness cover in medical insurance policies.
Empowering options
· Some concerns have been expressed about the provision of Advance Directive (AD) and Nominated Representative (NR) in the Bill.
· AD allows all citizens, not just persons with mental illness, to state (when they are well) their treatment choices in the event a future mental illness takes away their ability to make treatment-related decisions.
· This is not a compulsory requirement but it is a hugely empowering option.
· No one will be left untreated because they did not write an AD but many will recognise its importance, especially those who are wary of unscrupulous medical practice or who have indeed suffered from such practice in the past.
· Similarly, the Bill has provisions for individuals to appoint a nominated representative to make decisions on their behalf when they are unwell and cannot make decisions for themselves.
· This too is an option and if no such appointment is made, family members are the default NR.
· Both provisions give a measure of control back to individuals with mental illness, particularly women, allowing them to actively participate in decision-making about their care and treatment.
Mental Health Authority
· The Bill empowers the government to set-up Central Mental Health Authority at national-level and State Mental Health Authority in every State.
· Every mental health institute and mental health practitioners including clinical psychologists, mental health nurses and psychiatric social workers will have to be registered with this Authority.
· These bodies will (a) register, supervise and maintain a register of all mental health establishments,(b) develop quality and service provision norms for such establishments, (c) maintain a register of mental health professionals, (d) train law enforcement officials and mental health professionals on the provisions of the Act, (e) receive complaints about deficiencies in provision of services, and (f) advise the government on matters relating to mental health.
· A Mental Health Review Board will be constituted to protect the rights of persons with mental illness and manage advance directives.
Mental Health treatment
· The Bill also specifies the process and procedure to be followed for admission, treatment and discharge of mentally-ill individuals.
· A medical practitioner or a mental health professional shall not be held liable for any unforeseen consequences on following a valid advance directive.
· A person with mental illness shall not be subjected to electro-convulsive therapy without the use of muscle relaxants and anaesthesia. Also, electro-convulsive therapy will not be performed for minors.
· Sterilization will not be performed on such persons.
· They shall not be chained in any manner or form whatsoever under any circumstances.
· A person with mental illness shall not be subjected to seclusion or solitary confinement. Physical restraint may only be used, if necessary.
Suicide is decriminalized
· A person who attempts suicide shall be presumed to be suffering from mental illness at that time and will not be punished under the Indian Penal Code.
· The government shall have a duty to provide care, treatment and rehabilitation to a person, having severe stress and who attempted to commit suicide, to reduce the risk of recurrence of attempt to commit suicide.
10. Passage without scrutiny
· In the Budget session of Parliament there were several instances when Parliament failed to perform its role in scrutinizing Bills before passing them.
· This Session, 20 Bills were introduced, and to date none of these have been referred to standing committees of Parliament; one Bill — the constitutional amendment to create a national commission for backward classes — was passed by Lok Sabha and then referred by Rajya Sabha to a select committee.
· In the last three years, just 29% of Bills have been referred to parliamentary committees. This is in contrast to the 60% and 71% of bills examined by committees in the 14th and 15th Lok Sabhas, respectively.
· The important contribution of committees is evident in the progress of the Bills referred to them.
· The Mental Healthcare Bill passed this session and the Motor Vehicles (Amendment) Bill passed by Lok Sabha this week incorporated most of the changes recommended by the committees.
Some problematic Bills
· The Specified Bank Notes (Cessation of Liabilities) Bill follows up on the demonetization exercise.
· It provides a limited time period for citizens who were abroad between November 9 and December 30 to exchange their notes.
· Indian residents could do that until the end of March 2017, and NRIs till June.
· The Bill also made it an offence to hold more than 10 pieces of the old notes (25 for research or numismatic purposes).
· This Bill raises two significant constitutional issues. First, the notification of November 8 that denotified the notes allowed time till December 30 for depositing these, and said that any person unable to do so would be given further time to deposit them at specified RBI branches.
· On December 30, an ordinance was issued (the Bill is identical to the ordinance) that provided further time only to citizens who were abroad till that date.
· This is akin to expropriation of property without any compensation and may violate Article 300A of the Constitution.
· Also, if holding the notes is made a criminal offence on December 30, and a person having them that day cannot deposit or exchange them, then this is effectively making an action an offence with retrospective effect and may be seen as a violation of a fundamental right.
The second Bill is the Finance Bill.
· Other than amending tax rates, it allowed the process of appointment, removal and service conditions of members of appellate tribunals to be determined by rules.
· That is, the terms of engagement of quasi-judicial bodies will be determined by the Central government by notification instead of being specified in the Act.
· This provision may contravene several judgments that lay out the independence of the judiciary as a basic feature of the Constitution.
· Another provision of the Finance Bill permits income tax officers to refuse to disclose to any court or tribunal the information that formed the basis for a raid; this may contravene the principle of judicial review of executive action.
The third Bill is the Enemy Property Bill which vests the rights over enemy property with the Central government.
· This amendment has been made with retrospective effect (going back four decades), and will affect all property that may have been sold (and resold) since then.
· The Bill also bars any court from hearing cases related to enemy property. These provisions may not adhere to principles of due process and judicial review.
Taxation Laws Bill
· Itwas introduced in Lok Sabha and passed within a week, too raises some concern.
· It makes several amendments related to the introduction of the Goods and Services Tax.
· In addition, it adds a section to the Customs Act, which requires various authorities to disclose to the customs officer any information required.
· The question is whether Lok Sabha examined the appropriateness of giving such powers to the customs officer.
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