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Debate over Section 377
- A five-judge bench of the Supreme Court just concluded its hearing on a law that traces its history back nearly 500 years
- Section 377 of the Indian Penal Code (IPC) is modelled on Britain’s Buggery Act of 1533
- The “vice” of sodomy and bestiality that forms the basis of this offence in today’s Section 377 can be traced directly to that ancient law
Origins of Section 377
- Section 377 reads as follows: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to a fine.”
- The law found its way to India when the architect of India’s IPC in 1860, Thomas Macaulay (often credited with bringing English education to India), added it into the code
- The terms “carnal intercourse” and “against the order of nature” are not defined precisely anywhere in the code
Delhi HC exclusion
- In a landmark judgement in 2009, the Delhi high court, opining on Section 377, excluded acts of carnal intercourse by consenting adults in private
- The court found Section 377 to be inconsistent with the fundamental rights under Article 13(1) of the Constitution
- Additionally, it was found to be in violation of the right to privacy and dignity (Article 21), freedom of expression and right to equality (Article 19 (1) and Articles 14 and 15)
- The judgement also stated that it would unfairly target the LBGTQ+ community because the acts that are criminalized are closely associated with homosexuality
- The Delhi bench, adding practicality to wisdom, said that “this clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report”
- This report suggests the complete recast of several sections of the IPC, and, in so doing, recommends the deletion of Section 377 altogether
SC’s disagreement with Delhi HC
- A two-judge bench of the Supreme Court overruled the Delhi high court judgement on the grounds that it was legally unsustainable
- The bench took a literal and technical view rather than the wider sweep that the Delhi high court had applied, putting legal technicality above judgement and wisdom
Philosophical dichotomy prevails
- This philosophical dichotomy is at the root of the legal debate on Section 377
- One side (the literalists) holds that Parliament must enact laws that the judiciary should enforce, and, therefore, it is up to Parliament to change the law
- The other side (the pragmatists) has always maintained that the courts must opine if Parliament is unable or unwilling to modernize a 150-year-old law
SC might favour Delhi exclusion
- There have been many statements made by the bench that make it sound likely that the court will rule in favour of the Delhi exclusion
- Justice Rohinton Fali Nariman has said that the whole object of the fundamental rights chapter is to give power to the court to strike down laws that majoritarian governments do not touch due to political considerations
- If Section 377 of the IPC goes away entirely, there will be anarchy
- We are solely on consensual acts between man-man, man-woman. Consent is the fulcrum here. You cannot impose your sexual orientation on others without their consent
- One other factor in favour of the Delhi exclusion is an intervening and major judgement on privacy made in the Puttuswamy case
- A nine-judge bench upheld the right to privacy as a constitutional right in 2017
- That judgement will likely combine with a pragmatist view and offer the Delhi exclusion on Section 377
Judicial overreach or judicial interpretation
- The broader question on whether the right to privacy in the Puttuswamy case and the Delhi exclusion on Section 377 imply judicial overreach or merely judicial interpretation in the context of weak and highly political governments, remains
- The nine-judge bench for Puttuswamy and the five-judge bench on Section 377 (if they rule in favour of the Delhi exclusion) will make it settled law for now
- The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant
- The government is trying to amend the Right to Information (RTI) Act 2005, but RTI activists in the country have raised concerns that the proposed amendments would weaken the legislation, which has empowered millions of people to hold public authorities accountable.
- On 25 May, the National Campaign for Peoples’ Right to Information (NCPRI) wrote to Prime Minister Narendra Modi expressing anguish and concern regarding the regressive amendments to the RTI Act 2005 being proposed by the government.
- Among the most worrisome proposed amendments was the proposal that the central government and state governments would decide the salaries of information commissioners through rules — a move that is likely to compromise the independence and autonomy in the functioning of the commissioners.
- The information commissions (ICs), set up under the RTI Act are critical to citizens exercising the Right to Information, which allows citizens to question and seek information from public authorities.
- The ICs are the final authorities to adjudicate on claims of access to information which is a deemed fundamental right under Article 19(1) of the Constitution.
- The RTI law currently pegs the salaries, allowances and other terms of service of the Chief of all information commissions and the information commissioners of the Central Information Commissions at the level of a judge of the Supreme Court, while those of the state information commissioners are pegged at the level of the Chief Secretary of the state.
- The status conferred on commissioners under the RTI Act is to empower them to carry out their functions autonomously and require even the highest offices to comply with the provisions of the law.
- Empowering the central and state governments to decide salaries of information commissioners would seriously undermine the independence of information commissions.
- As it is, the information commissions in the country are in a mess, with the posts of commissioners, including that of the chief information commissioner, lying vacant in several state ICs.
- The draft rules in the amendment bill, issued by the Department of Personnel and Training (DoPT) of the Government of India, has reportedly been approved by the Cabinet.
- There are also several other issues, raised earlier by the RTI activists, with the proposed amendments that will complicate the process of seeking information from the government.
- But the text of the amendment bill has not been made public, and no comments and suggestions from the public has been sought yet.
- This undermines people’s democratic right to know and participate in the legislative process and prevents public scrutiny of the provisions of a proposed bill.
Pre-legislative Consultation Policy
- The RTI activists have demanded that the Modi government make the amendment bill public in keeping with the pre-legislative consultation policy of the government of India.
- In 2014, a Pre-legislative Consultation Policy was adopted by the Government of India which mandates that all draft legislations (including subordinate legislation) be placed in the public domain for 30 days for inviting public comments and a summary of comments be made available on the concerned ministry’s website prior to being sent for Cabinet approval.
- The necessity and significance of public consultation in the process of law-making is widely recognised by democratic governments across the world.
- More than six million RTI applications are filed every year, and the RTI Act is the most extensively used transparency legislation globally. The law has been used by people to fight corruption and wrongdoing in the system.
- The importance of the Right to Information, and the threat that it poses to public authorities by holding them answerable, can be gauged by the rising number of attacks and murders of RTI activists in the country.
- Though the criticism of the changes to the RTI Act that the Centre wants to bring need nuance, the underlying concern of those protesting the changes is merited.
- The amendments will indeed weaken the transparency law and RTI as a lever to ensure government accountability.
- The changes relate to fixing the tenure of information commissioners (including the chief information commissioner) at both the central and the state level, and the rationalisation of their salaries and service conditions.
- While the Centre may be well within its rights to tweak the salaries for the commissioners of the Central Information Commission, all other interventions it has in mind make the commissions vulnerable to political pressure and erode the commission(s) authority, and will also be a violation of the federal spirit.
- The existing law states that the tenure of the information commissioners will be of five years, with an age cap of 65—the Centre now proposes that the term may be prescribed by the central government.
- If the tenure is subject to the Centre’s whim, chances are information commissions will be sacked for passing inconvenient orders.
- While three of the 10 positions at the Central Information Commission are lying vacant, the Centre is intent upon vesting itself with more termination powers.
- What’s worse is the manner in which the amendments have been presented.
- The Pre-Legislative Consultation Policy of 2014 makes it mandatory for the government to seek public feedback on draft legislations, but the Centre has zealously guarded the changes, as per many activists involved in shaping the original Act.
- The present government, as well as its predecessor, have moved in the past to weaken the Act—while the UPA took the RTI yoke off political parties, the present government wanted to introduce changes that would have jeopardised the safety of RTI applicants and made using RTI forbidding, before public outcry forced it to withdraw the proposals.
- This would make the opaqueness with which the amendments have been presented seem deliberate.
- As a law that empowers the citizen, the Right to Information Act, 2005 quickly struck root in a country saddled with the colonial legacy of secretive government.
- The move by the NDA government to amend the far-sighted law aims at eroding the independence of the Information Commissions at the national level and in the States.
- The proposed amendments show that the Central government seeks control over the tenure, salary and allowances of the Chief Information Commissioner and Information Commissioners at the Centre, and the State Chief Information Commissioners.
- Such a change would eliminate the parity they currently have with the Chief Election Commissioner and Election Commissioners and, therefore, equivalence with a judge of the Supreme Court in matters of pay, allowances and conditions of service. The Centre will also fix the terms for State Information Commissioners.
- If at all, the law needs to be amended only to bring about full compliance by government departments and agencies that receive substantial funding from the exchequer, and to extend its scope to more institutions that have an influence on official policy.
- The Supreme Court has held the right to information as being integral to the right to free expression under Article 19(1)(a); weakening the transparency law would negate that guarantee.
- In its rationale for the amendments, the Centre has maintained that unlike the EC, Information Commissions are not constitutional bodies but mere statutory creations under the law.
- This is a narrow view, betraying an anxiety to tighten the hold of the administration on the Commissions, which even now get little official support to fill vacancies and improve efficiency.
- A recent public interest petition filed in the Supreme Court by the National Campaign for People’s Right to Information pointed out that the Central Information Commission has over 23,500 pending appeals and complaints, and sought the filling up of vacancies in the body.
- In many States, the Commissions are either moribund or working at low capacity owing to vacancies, resulting in a pile-up of appeals.
- The challenges to the working of the law are also increasing, with many State departments ignoring the requirement under Section 4 of the Act to publish information suo motu .
- The law envisaged that voluntary disclosure would reduce the need to file an application. Since fines are rarely imposed, officers give incomplete, vague or unconnected information to applicants with impunity.
- Proposals to make it easier to pay the application fee, and develop a reliable online system to apply for information, are missing.
- These are the serious lacunae. Attempts were made by the UPA government also to weaken the law, including to remove political parties from its purview. Any move to enfeeble the RTI Act will deal a blow to transparency
- Most countries are melting pots and, therefore, incapable of throwing up a singular, distinctive trait
- India has long been suspected of harbouring dual personalities
- The sharp social and income divides—with a handful of global billionaires on one side and millions trapped in abject poverty on the other—or the dialectic between the nation’s Constitution-based democratic traditions and an emergent autocracy, are seen as symptoms of the nation’s conflicted personality
US complaints against India
- The US, the world’s trade malcontent, is pointing out India’s flawed persona at WTO
- The danger is that the blame might stick this time
- The US has complained to the WTO’s dispute settlement body about India’s export-related subsidies
- The complaints are about five specific schemes:
- export-oriented units scheme and sector-specific schemes, including the electronics hardware technology parks scheme
- the merchandise exports from India scheme
- the export promotion capital goods scheme
- special economic zones
- the duty-free imports for exporters programme
Basis of the complaints
- The US contends that India’s export-related subsidies are inconsistent with the WTO’s Agreement on Subsidies and Countervailing Measures (ASCM), specifically Section 3 that bars export-related subsidies
- Annexure-VII of the same agreement provides a list of developing countries, including India, that cannot escape the provisions when their per capita gross national product (GNP) crosses $1,000
- India’s per capita GNP crossed $1,000 sometime ago
- According to CEIC Data, India’s GNP per capita was $1,978 in 2017
India’s preparations for an adverse verdict
- India is not strategically prepared for the consequences—specifically in terms of alternative mechanisms to boost exports without subsidies
- The special economic zone (SEZ) policy, for example, is clearly not WTO compliant, but there is no alternative scheme yet
- India wants to achieve “a quantum jump in exports” through procedural stuff like digitization of ports or fewer tariff notifications
- There is a need for a massive structural overhaul that can wean exporters off certain subsidies without affecting export performance
- There is an intricate skein of moral and legal issues surrounding the dispute
- On the moral plane, the US is resorting to what is known in development literature as “kicking away the ladder”—having extensively used similar benefits on its path to development, it now attempts to prevent other developing countries from catching up
- On the legal side, India is likely to get some breathing time before dismantling the edifice of export-related subsidies
- India’s export growth—and hence GDP growth—faces many obstacles and it needs a strategic framework that can look and plan ahead
- The GDP deflator, also called implicit price deflator, is a measure of inflation. It is the ratio of the value of goods and services an economy produces in a particular year at current prices to that of prices that prevailed during the base year.
- This ratio helps show the extent to which the increase in gross domestic product has happened on account of higher prices rather than increase in output.
- Since the deflator covers the entire range of goods and services produced in the economy — as against the limited commodity baskets for the wholesale or consumer price indices — it is seen as a more comprehensive measure of inflation.
- GDP GDP price deflator measures the difference between real GDP and nominal GDP. Nominal GDP differs from real GDP as the former doesn’t include inflation, while the latter does.
- As a result, nominal GDP will most often be higher than real GDP in an expanding economy.
- The formula to find the GDP price deflator:
- GDP price deflator = (nominal GDP ÷ real GDP) x 100
- A consumer price index (CPI) measures changes over time in the general level of prices of goods and services that households acquire for the purpose of consumption.
- However, since CPI is based only a basket of select goods and is calculated on prices included in it, it does not capture inflation across the economy as a whole.
- The wholesale price index basket has no representation of the services sector and all the constituents are only goods whose prices are captured at the wholesale/producer level.
- Changes in consumption patterns or introduction of goods and services are automatically reflected in the GDP deflator.
- This allows the GDP deflator to absorb changes to an economy’s consumption or investment patterns. Often, the trends of the GDP deflator will be similar to that of the CPI.
- Specifically, for the GDP deflator, the ‘basket’ in each year is the set of all goods that were produced domestically, weighted by the market value of the total consumption of each good.
- Therefore, new expenditure patterns are allowed to show up in the deflator as people respond to changing prices. The theory behind this approach is that the GDP deflator reflects up-to-date expenditure patterns.
- GDP deflator is available only on a quarterly basis along with GDP estimates, whereas CPI and WPI data are released every month.
- AB-NHPM aims to provide a benefit cover of ₹5 lakh for more than 1,300 specified and other unspecified medical and surgical procedures to more than 100 million families.
- It intends that within the next decade, the unacceptably high levels of out-of-pocket expenditures that poor households across the country currently incur in seeking healthcare especially secondary and tertiary-level care—will fade away.
Issue over Pricing-Model
- Some healthcare provider networks have raised concerns about the viability of the pricing model.
- Some private sector healthcare providers have shown reluctance in seeking empanelment under the initiative, saying the rates for treatment packages are too cheaper.
Treatment Rates- NOT the elephant in the room
- Setting treatment rates at the national level is not an easy task, especially when it is being done for the first time in the world.
- There is, admittedly, a dearth of national-level comprehensive costing studies; that will be one of the core research areas AB-NHPM will be looking into continuously.
- Nonetheless, the current rates have been determined following a rigorous process.
States examples are promising
- There are large schemes running successfully in states such as Tamil Nadu, Maharashtra and Karnataka which can be a rich source of information for the mission.
- These schemes have no dearth of empanelled hospitals which are providing healthcare services at the rates so provisioned.
- Recognizing the large variations in cost structures across the country, AB-NHPM gives states the flexibility to increase or decrease rates, depending on their contexts.
- By definition, these rates are median rates, and will need to be adjusted at the state level.
AB-NHPM mandates to timely refine its approach
- The mission will continue to undertake costing studies and actuarial analysis besides periodically revisiting costing principles to reflect annual fluctuations in productivity and unit costs.
- The viewpoints of hospitals about the rates have been taken into consideration during the current costing exercise. Hospitals’ views will continue to be sought as the scheme evolves.
- AB-NHPM plans to move on to more sophisticated provider payment mechanisms, including variants of diagnosis-related group (DRG) models, which can assuage such concerns.
- It seeks to provide quality health services to all beneficiaries and, therefore, would urge all quality hospitals to participate in the process.
Hospitals should carefully consider the following issues
(A)The hospitals should understand that the nationally prescribed rates are not intended to cover the cost of capital and infrastructure in the short run but the marginal cost.
- They seek to ensure that excess capacities are utilized, leading to greater efficiency in service utilization of hospitals.
- This efficiency is not just in terms of empty beds but also more efficient hospital administration, optimum utilization of professionals and easier process flows for the patients with quicker turnaround times.
(B) Hospitals, especially the big ones, have a responsibility.
- They should not expect to strengthen their balance-sheets based on services to the bottom 40% people of the country.
- Universal health coverage is based on a social contract, where the rich need to pay for the poor, the healthy for the sick and the young for the elderly. Large and expensive hospitals need to do their bit as well.
(C) AB-NHPM wants a partnership with all quality hospitals so that the evolution of the scheme benefits from diverse inputs.
- This partnership will be a win-win situation. The mission will benefit from the private sector capacity to provide services to large numbers.
- At the same time, this provides the private sector an opportunity for shaping the most ambitious healthcare scheme in the world.
- Healthcare is a matter of utmost concern of time. AB-NHPM seeks to address this concern in a stipulated time.
- Private Hospitals can play a leading role and their reluctances over pricing are essentially considered by the government.
- It is often said that the foot soldiers in a revolution are unaware of their role in historic change. Same implies to the participation of these private players here.
- The evolutionary nature of the scheme provides ground for its immediate implementation so that the beneficiaries get affordable healthcare at their earliest.
- Three decades after its first mission to Antarctica, the government is refocusing priorities to the Arctic because of opportunities and challenges posed by climate change.
- It has renamed the National Centre for Antarctic and Ocean Research (NCAOR) — since 1998, as the National Centre for Polar and Ocean Research.
- It’s also in talks with Canada and Russia, key countries with presence in the Arctic Circle, to establish new observation systems, according to a source. Presently India only has one Arctic observation station near Norway.
Hunt for Hydrocarbons
- Climate change was a decisive factor in India re-thinking priorities. Sea ice at the Arctic has been melting rapidly — the fastest in this century.
- That means several spots, rich in hydrocarbon reserves, will be more accessible through the year via alternative shipping routes.
India and the Arctic
- India is already an observer at the Arctic Council — a forum of countries that decides on managing the region’s resources and popular livelihood.
- India in 2015 set up an underground observatory, called IndARC, at the Kongsfjorden Fjord, half way between Norway and the North Pole.
Indian mission on the Antarctic
- The Indian Antarctic Program is a multi-disciplinary, multi-institutional program under the control of the National Centre for Antarctic and Ocean Research, Ministry of Earth Sciences, Government of India.
- It was initiated in 1981 with the first Indian expedition to Antarctica.
- The program gained global acceptance with India’s signing of the Antarctic Treaty and subsequent construction of the Dakshin Gangotri Antarctic research base in 1983, superseded by the Maitri base from 1990.
- The newest base commissioned in 2015 is Bharati, constructed out of 134 shipping containers.
Indian mission on the Arctic
- Himadri Station is India’s first Arctic research station located at Spitsbergen, Svalbard, Norway. It is located at the International Arctic Research base, Ny-Ålesund.
- It was inaugurated on the 1st of July, 2008 by the Minister of Earth Sciences. It is followed by IndARC.
- The United States Geological Survey estimates that 22% of the world’s oil and natural gas could be located beneath the Arctic.
- ONGC Videsh has signed joint-venture with Russia for oil exploration there.
- It is an advisory body that promotes cooperation among member nations and indigenous groups as per the Ottawa Declaration of 1996.
- Its focus is on sustainable development and environmental protection of the Arctic,
- The Arctic Council consists of the eight Arctic States: Canada, the Kingdom of Denmark (including Greenland and the Faroe Islands), Finland, Iceland, Norway, Russia, Sweden and the United States.
- India and China are one of the observer countries since 2013.
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