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In particular, it focuses on whether or not in a criminal matter, the court can entertain a petition under Article 32 of the Constitution, under which the Supreme Court enforces fundamental rights, for which the accused are expected to seek their remedy under the Code of Criminal Procedure. Essentially, this update marks the stage for the determination of the scope of Article 32.
- Certain activists came under scrutiny for allegedly being members of the outlawed Communist Party of India (Maoist) and joining a conspiracy against the government.
- Among these, five prominent activists were arrested by the Pune police last month.
- The Supreme Court has granted these activists the rare relief of remaining in house arrest while it examines the charges against them.
A Note on Article 32 of the Indian Constitution:
- According to this article. the Supreme Court of India shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
- Further, Article 32(1) provides for the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights.
- Also, the Supreme Court under Article 32(2) is free to devise any procedure for the enforcement of fundamental right and it has the power to issue any process necessary in a given case. It is in the view of this constitutional provision, the Supreme Court of India may even give remedial assistance, which may include compensation in “appropriate cases”.
- The Supreme Court of India must now decide on one of the following courses.
a) to allow the police in Maharashtra to pursue its investigation against the activists for allegedly being members of the outlawed Communist Party of India (Maoist) and joining a conspiracy against the government,
- b) To order a probe by an independent team.
The Issue of Contention:
- The issue that is being debated here is the Centre’s contention that it is probing a terrorist conspiracy involving Maoist insurgents and their urban supporters, on one hand and the counter-argument to this being that this is a disguised crackdown on political dissent.
- There have been several petitioners, including historian Romila Thapar.
- These petitioners have questioned the motivation for the police raids on the residences of these activists and a few others in a coordinated operation across several States.
- These petitioners want those arrested to be released and demand an independent investigation.
- The Maharashtra State government and Union government have sought to defend the arrest and prosecution. Their contention is that the case is based on incriminating evidence, seized during the probe and has nothing to do with the ideology or the political views of those under investigation.
- It is important to note that in entertaining this petition, the Supreme Court has set the stage for an examination of some fundamental questions.
- These fundamental questions lie at the intersection of criminal procedure and constitutional law.
- In particular, there are two questions that emerge 1) Procedural 2) Substantive
Procedural Question: Whether or not in a criminal matter, the court can entertain a petition under Article 32 of the Constitution, under which the Supreme Court enforces fundamental rights, for which the accused are expected to seek their remedy under the Code of Criminal Procedure?
Substantive Question: Should the court intervene when the liberty of citizens and their right to dissent are sought to be denied by arbitrary police action?
In conclusion, the government may need to look into the possibility of a precedent being set, whereby every accused can rush to the Supreme Court immediately on arrest.
- Further, at the same time, one cannot deny the peculiar circumstances in which a case relating to violence at a Dalit commemoration dramatically morphed into a Maoist plot.
- Further, it is a matter of intrigue that one city’s police is investigating a crime that supposedly spans several States. Further, that this matter involves the purchase of arms and providing strategic inputs to armed rebellion. Thus, shouldn’t this not be handed over to a national agency for further investigation? This is a question that needs to be answered.
- The Rewari and Kosli Bar Associations in Haryana have passed resolutions that none of their members will defend an accused. The person in question has been accused of the charge of gang-rape of a teenage girl from Rewari district.
- It is widely believed that the resolution taken by the Rewari and Kosli Bar Associations in Haryana is wholly illegal, and goes against the decision of the Supreme Court in A.S. Mohammed Rafi v. State of Tamil Nadu (2010).
- It is important to note that several Bar Associations in India have passed resolutions that their members would not defend persons accused of heinous crimes.
- Pursuant to this, the Supreme Court declared all such resolutions to be wholly illegal, against all traditions of the Bar, and against professional ethics.
- The Supreme Court observed, “Every person, however wicked, depraved, vile, degenerate, perverted, loathsome, execrable, vicious or repulsive he may be regarded by society has a right to be defended in a court of law, and correspondingly it is the duty of the lawyer to defend him.”
A Note on Article 39A
- Article 39A of the Constitution of India provides that State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability.
- Further, Articles 14 and 22(1) also make it obligatory for the State to ensure equality before law and a legal system which promotes justice on a basis of equal opportunity to all.
- It is important to note that legal aid strives to ensure that constitutional pledge is fulfilled in its letter and spirit and equal justice is made available to the poor, downtrodden and weaker sections of the society.
- Sec. 304, Criminal Procedure Code:
It is important to note that the Constitutional duty to provide legal aid arises from the time the accused is produced before the Magistrate for the first time and continues whenever he is produced for remand.
When we look at a historical perspective, we realize that Indian lawyers have defended:
- the revolutionaries of Bengal during British rule,
- the Indian communists charged with waging war against the British King in the Meerut Conspiracy Case,
- the Razakars of Hyderabad,
- Sheikh Abdullah,
- the Indian National Army accused,
- the assassins of Mahatma Gandhi and Indira Gandhi,
- and even in recent times Binayak Sen and Ajmal Kasab.
Thus, no Indian lawyer of repute has walked away from his duty to defend someone claiming that it would make him unpopular or that it was personally dangerous for him to do so.
Pursuant to this, the right-minded lawyers of Rewari and Kosli should defy the resolutions of their Bar Associations.
- The NITI Aayog (The National Institution for Transforming India), was formed via a resolution of the Union Cabinet on January 1, 2015.
- The NITI Aayog is the premier policy ‘Think Tank’ of the Government of India, which provides both directional and policy inputs.
- Further, while designing strategic and long term policies and programmes for the Government of India, NITI Aayog also provides relevant technical advice to the Centre and States.
- It is important to note that the Government of India, constituted the NITI Aayog to replace the Planning Commission instituted in 1950. This step taken by the Government of India was done in keeping with its reform agenda.
- This was done in order to better serve the needs and aspirations of the people of India.
- An important evolutionary change from the past, is that the NITI Aayog acts as the platform of the Government of India to bring the various States of India to act together in the national interest, and thereby fostering Cooperative Federalism in the process.
- At the core of NITI Aayog’s creation are two hubs – Team India Hub and the Knowledge and Innovation Hub.
Team India Hub: The Team India Hub leads the engagement of states with the Central government.
The Knowledge and Innovation Hub:
The Knowledge and Innovation Hub builds on NITI’s think-tank capabilities. These hubs reflect the two key tasks of the Aayog.
- Further, the NITI Aayog is also developing itself as a State of the Art Resource Centre, with the necessary resources, knowledge and skills. It is believed that this will enable it to act with speed, promote research and innovation, provide strategic policy vision for the government, and deal with contingent issues.
The points mentioned here, agree with the argument that the NITI Aayog is relevant.
- It is important to note that the NITI Aayog was formed to bring fresh ideas to the government.
- Further, its first mandate is to act as a think tank.
- The NITI Aayog can be visualised as a funnel through which new and innovative ideas come from all possible sources. These sources include: industry, academia, civil society or foreign specialists. It is envisioned that the innovative ideas from all these sources can flow into the government system for implementation.
- It is believed that regular brainstorming sessions with stakeholders from various industries and sectors are held.
- Further, initiatives like Ayushmaan Bharat, and India’s approach towards artificial intelligence, water conservation measures, and even the draft bill to establish the National Medical Commission to replace the Medical Council of India have all been conceptualised in NITI Aayog.
- Further, it is encouraging to note that these initiatives and concepts are being taken forward by the respective Ministries.
- The NITI Aayog should be looked upon as an action tank rather than just a think tank.
- If it succeeds, the NITI Aayog could emerge as an agent of change over time and can contribute to the Prime Minister’s vision of improving governance and implementing innovative measures for better delivery of public services.
- The NITI Aayog is also bringing about a greater level of accountability in the system.
- Historically, we had 12 Five-Year Plans, but unfortunately, these plans were mostly evaluated long after the plan period had ended. Thus, there was no real accountability.
- It is important to note that the NITI Aayog has established a Development Monitoring and Evaluation Office which collects data on the performance of various Ministries on a real-time basis.
- This data is then used at the highest policymaking levels to establish accountability and improve performance.
- It is believed that this performance and outcome-based real-time monitoring and evaluation of government work would have a significant impact on improving the efficiency of governance.
- Further, using such data, one can also come up with performance-based rankings of States across various verticals to foster a spirit of competitive federalism.
- The NITI Aayog also identifies the best practices in different States in various sectors and then tries to replicate them in other States.
- The Atal Innovation Mission, was established under the NITI Aayog.
- The Atal Innovation Mission has already done some commendable work in improving the innovation ecosystem in India.
- The Atal Innovation Mission has established more than 1,500 Atal Tinkering Labs in schools across the country and this number is expected to go up to 5,000 by March 2019.
- Further, it has also set up 20 Atal Incubation Centres for encouraging young innovators and start-ups.
In conclusion, the NITI Aayog remains an integral and relevant component of the government’s plans to put in place an efficient, transparent, innovative and accountable governance system in the country.
The points mentioned here, doesn’t question the relevance of the NITI Aayog, but looks at the issue from an international perspective and suggests some measures which can be taken in India.
It is believed that the NITI Aayog would need to evolve into a much stronger organisation than it is now.
A Look at Planning Institutions:
- From a historical perspective, we realize that the Chinese state ensured that after its market-oriented economic reforms began, its State Planning Commission started to become more powerful in the state apparatus.
- As a consequence of this, one witnessed growth and poverty reduction in China on a scale unprecedented in history.
- As a matter of fact, China became the “factory of the world”.
- In a similar fashion, in all East Asian and Southeast Asian countries, industrial policy was planned and executed as part of five-year or longer-term plans.
- It is important to note that these countries managed to steer policies through turbulent times in the global economy, primarily because these countries had planning institutions which went hand in hand with industrial policy. As a consequence to this, they were able to sustain growth.
- Further, while East Asian and Southeast Asian countries still had and continue to have five-year plans, what was integral to their planning was a productive use of labour, through an export-oriented manufacturing strategy.
- It is believed that this was the strategy that India lacked in her planning process.
Two Proposed Changes:
Two major changes in governance structures are needed.
- Planning will have to become more decentralised, but within a five-year plan framework.
- The bureaucracy will need to change from being generalist in nature to being specialist in nature, and its accountability will have to be based on outcomes achieved, not inputs or funds spent.
- Lastly, the NITI Aayog should spell out how these reforms will be implemented.
The points mentioned here, questions the relevance of the NITI Aayog.
- The Planning Commission that predates the NITI Aayog had been on the decline since 1991. This was much before it was replaced by the NITI Aayog in 2014.
- It is believed that the charge of the Planning Commission was entrusted to eminent experts, of which many had trained in neoliberal schools.
- This did not fit well with the requirement for an inclusive and equitable path of economic development in India.
- Under the influence of the Nehruvian vision, the public sector was entrusted with the economy. This was done so given the weak market mechanism which was dominated by mercantile capital and a feudalistic system, especially in rural areas.
- It is important to note that even then, the Planning Commission controlled only half of the total investment in India. This was so because of the adoption of a mixed economy system.
- This approach fitted well with India’s republican democratic Constitution.
Criticisms of the NITI Aayog:
- The first charge is that this organization wields no influence.
- Some sections of opinion believe that the NITI Aayog has no role in influencing, let alone directing, public or private investment. Further, they question the NITI Aayog’s influence in policy-making with long-term consequences (for instance, demonetisation and the Goods and Services Tax).
- They also question the NITI Aayog’s role as a think tank. They argue that while working as a think tank and generating new ideas, it maintains a respectable intellectual distance from the government of the day. They believe that this is not visible in the present setup.
- They further go on to assert that India needs to have a paradigm of planning for development.
- In conclusion, they assert that India requires planning that addresses social justice, reduces regional and gender inequalities, and ensures environmental sustainability.
- The Ayushman Bharat—Pradhan Mantri Jan Arogya Yojana (PMJAY), a health insurance scheme announced in the last budget, will be launched on 23 September
- It is arguably the most ambitious social health insurance (SHI) programme ever launched anywhere in the world
- PMJAY will provide insurance up to ₹500,000 per family per year for in-patient secondary and tertiary treatment
- It will cover over 100 million vulnerable families, which is about 500 million people, the poorest 40% of India’s population
- Treatment would be provided by empanelled public and private hospitals
- PMJAY is actually the second tier of Ayushman Bharat, a two-tier scheme. It will ride on the first tier, a network of 150,000 health and wellness centres (HWCs) that will provide free universal and comprehensive primary health care
- The HWCs will serve as the awareness, screening and referral link between patients and PMJAY
- A cadre of frontline health service professionals called Pradhan Mantri Aarogya Mitras (PMAMs) are being trained to facilitate the provision of treatment to beneficiaries at hospitals
Relevance of PMJAY
- The significance of PMJAY has to be seen in the context of existing health conditions and health service delivery systems in India
- With an average life expectancy of 68.3 years, India trails all its Asian neighbours barring Afghanistan, Pakistan, Myanmar and Laos
Healthcare expenditure not satisfactory
- Healthcare is one important factor among several that determine health outcomes along with income, nutrition, and hygiene
- The World Health Organization recommends that a country should spend at least 4% of its gross domestic product (GDP) on health
- India’s health expenditure at 3.9% of GDP is comparable to this norm
- However, the health ministry’s National Health Accounts show that total government health expenditure is only an appalling 1.1% of GDP
- Well over 70% of health expenditure is privately financed
- More than 62% is direct out of pocket (OOP) spending by patients as against the WHO-recommended OOP ceiling of 40%
Less focus on preventive care
- Preventive health spending is more equitable and much more cost effective in improving health standards
- But less than a quarter of India’s meagre public health expenditure is allocated to preventive care
- There is thus the continuing high incidence of communicable diseases
- There is a rising incidence of non-communicable diseases with income growth, lifestyle changes and environmental degradation, resulting in a rising total burden of disease
Challenges to PMJAY
- Unknown financial cost of the programme
- No actuarial database is available to yield a probability distribution of the expected number of different health episodes requiring different treatments at varying costs
- Without such a database, insurance agencies cannot estimate the required premium to adequately cover the pooled risk —the ultimate cost of the programme
- Coverage erosion
- A pattern observed in several countries is that when costs escalate, the package covered by SHI is shrunk and co-payments and coverage caps are introduced, thereby raising the burden of OOP spending
- Some private providers might be pushing high-cost treatments not covered by SHI to enhance their profit margins, thereby further raising the OOP burden on patients
- Implementation failure
- PMJAY will ride on the first tier of Ayushman Bharat, a network of 150,000 HWCs spread throughout the country
- Fixing this weak primary care foundation of India’s public healthcare system is more urgently needed than providing insurance for secondary and tertiary care
- These challenges do not imply that PMJAY will fail but that it is only a first step on the road to universal SHI
- As a follower country, India can learn from the experiences of others
- The Thai model with excellent SHI coverage and OOP spending down to 18% is increasingly seen as the global best practice
- The sharp slide in the value of the rupee has led to speculation that the RBI might opt to issue NRI bonds worth $30-35 billion in order to help attract dollar investment into the country
- NRI bonds were also issued in 1998 and 2000 to help curb the slide of the rupee
What are the NRI bonds?
- These are bonds issued by the Reserve Bank of India to non-resident Indians who are interested in investing their money in India
- Since these bonds offer higher returns than other similar investments, they can be used as a tool to attract capital during times when other domestic assets fail to attract the interest of foreign investors
Two important factors behind the rupee’s fall
- Capital has been moving out of India’s capital markets
- Foreign portfolio investors pulled out ₹47,836 crore in the first half of the year, a 10-year high
- Indian exports have been losing demand, while imports of commodities like crude oil have risen significantly
- India’s current account deficit hit a five-year high in July
How will NRI bonds help?
- NRI bonds could theoretically help increase demand for the rupee and stabilise its value against the dollar
- In 2013, when the rupee witnessed a fall of about 25% in just four months following the U.S. Federal Reserve’s decision to taper down its bond-purchase programme, the RBI was able to collect more than $30 billion worth of foreign capital
- While these bonds can provide temporary assistance to the rupee by encouraging capital inflows into the economy, they may not address the fundamental economic issues that are causing the fall of the rupee
- Until the RBI can rein in domestic inflation and the government can take steps to boost exports and curb imports, emergency measures like the issuance of NRI bonds can only offer temporary respite to the rupee
- The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act of 2017 safeguards the human rights of people living with HIV and AIDS
- The Ministry of Health and Family Welfare issued a notification to bring the Act into force from September 10
History of the law
- The Act was born out of an urgent need to prevent and control the virus and syndrome.
- It has highlighted the necessity for effective care, support and treatment for HIV and AIDS
- The Act spawns from the commitment to the global community under the Declaration of Commitment on Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (2001)
- The declaration calls for enhanced coordination and intensification of national, regional and international efforts to combat the virus and syndrome in a comprehensive manner
Provisions of the law
- The statute aims to provide equal rights to persons with HIV and bring them into the mainstream
- The Act gains importance as it makes it a legal obligation to protect the privacy of persons with HIV and AIDS
- The law addresses discrimination meted out to persons with HIV and AIDS. It fortifies the health and medical health-care system for them and introduces legal accountability along with formal mechanisms to inquire into complaints and redress grievances
- The Act lists various grounds on which discrimination against persons with HIV is prohibited
- The requirement for HIV testing as a pre-requisite for obtaining employment or accessing health care or education is also prohibited
- The Act provides that every HIV infected or affected person below the age of 18 years has the right to reside in a shared household
- Every person in the care and custody of the state shall have the right to HIV prevention, testing, treatment and counselling services
- The Act prohibits any individual from publishing information or advocating feelings of hatred against HIV positive persons and those living with them
- Section 37 makes such propagation of hatred punishable with a term of imprisonment which shall not be less than three months but which may extend to two years, with fine which may extend to ₹1 lakh
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