DAILY MAINS NEWSLETTER FOR UPSC | 05 MAR 2021 | RaghukulCS

Daily Mains Newsletter For UPSC
| RaghukulCS

05 MAR 2021

Index

Mains Value Addition

Mains Analysis

Topic No

Topic Name

Source

1

Not so stellar in protecting personal liberty.

 The Hindu

2

With Biden, India may need a new template.

The Hindu

3

The Haryana bill is constitutionally indefensible, politically cynical

Indian Express

4

Intimate partner violence: beyond legal definition of consent.

Indian Express

Mains Value Addition

OTT platforms will not have to register: Centre

Syllabus-

 GS2- Government policies and interventions for development in various sectors

Analysis:

  1. The Ministry of Information and Broadcasting has clarified that over-the-top (OTT) platforms will not have to register with the government, and no government nominee will be present in the self-regulatory body.
  2. The Centre recently had notified new rules and guidelines for OTT platforms and digital news media.
  3. The I&B Ministry said it merely requires them to disclose information and that there is no requirement of registration of any kind with the Ministry.
  4. The rules focus on self classification of content instead of any form of censorship. The platforms were expected to develop a grievance redressal mechanism to tackle complaints about content.
  5. Dispelling rumours, the Ministry clarified that in the self-regulating body, no member will be appointed by the government.

Content needs to be checked, says SC

Syllabus-

GS2- Important aspects of governance, transparency and accountability

Analysis:

  1. The Supreme Court recently made it amply clear to over-the-top (OTT) platforms such as Netflix and Amazon Prime Video that it is in favour of “screening” the content shown by them.
  2. It said some of the films hosted by the platforms were pornographic.
  3. Solicitor-General Tushar Mehta said the content included “filthy abuses”.
  4. The Bench asked the guidelines to be placed on record and scheduled a hearing for March
  5. The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules of 2021 requires the streaming platforms to comply with a new three-tier self-regulatory complaint redressal system.

IISc in top 100 list in natural sciences category

Syllabus- 

GS2- Issues relating to development and management of Social Sector/Services relating to Education

Analysis:

  1. The Indian Institute of Science broke into the top 100 in the natural sciences category of the QS World University Rankings by Subject 2021, which were released recently.
  2. With regard to subject rankings, there are two new entrants in the top 100 list: JNU’s anthropology programme and O.P. Jindal Global University’s law programme, which is also the only private institution in the list.
  3. In the broad engineering and technology category, only three institutions made it to the top 100 — the Bombay, Delhi and Madras IITs — in comparison to five institutions last year.
  4. The Kharagpur and Kanpur IITs dropped out of the top 100 though the former is one of the government’s Institutes of Eminence (IoEs).
  5. The Bombay, Delhi and Madras IITs, which are also IoEs getting extra Central funding with the specific aim of rising in global rankings, have all dropped several places this year as well.

Mains Analysis

Not so stellar in protecting personal liberty.

Why in News: –

The outcomes from the judiciary in the defence of liberty, free thought and speech seem to be far from routine.

Syllabus:

GS-1: Social empowerment.

GS-4: Ethics and Human Interface: Essence, determinants and consequences of Ethics in-human actions; dimensions of ethics; ethics.
  • The different cases where judiciary grant bail, on charges of criminal defamation to journalist Priya Ramani.
  • The second was Disha Ravi, a 22-year-old woman who was arrested in Bengaluru and taken to New Delhi on charges of sedition.
  • A Delhi court, in discharging her of the accusations, recognized that a woman’s right to dignity superseded any claims over reputation.
  • The court also held that a survivor of sexual harassment had the freedom to place her grievance at any point of time after the occurrence of the event and on any platform of her choice.

The Key takeaways from the verdict:

  1. Didn’t “do’” anything:  it drives the message home that you don’t have to touch someone inappropriately to sexually harass them.
  2. The Victim had to prove her intention: that a woman who was sexually harassed had to prove her motives, that she was not guilty of defamation and was not making false allegations.
  3. The Women and the workplace: Now all workplaces have to have Prevention of Sexual Harassment at the Workplace (POSH) complaint cells but women are still wary for this very reason.
  4. The Women have a right to complain even after decades: The court says women have a right to speak about their experiences on any platform, even decades later.
  5. Not a man of stellar reputation:  Court says “A woman cannot be punished “for raising voice against sex abuse on the pretext of criminal complaint of defamation.

Constitutional obligations: –

  1. The Constitution permits reasonable restrictions on free speech on a variety of stated grounds.
  2. Determining what is reasonable and what falls within the bounds of those permitted limitations can sometimes be an exercise fraught with difficulty.
  3. India’s Parliament has either chosen to allow colonial-era laws to do the government’s bidding or it has legislated new rules that do not merely err on the side of restraint as much as they treat the restriction as their chief goal and purpose.
  4.  The cases concerning Ms. Ramani, Ms. Ravi and Ms. Purohit each emanate outa law that is categorically unconstitutional, but that has nonetheless been upheld by the Supreme Court.

What are the tools of defamation:

  1. It ought to be self-evident that the punishment, even the very idea of prosecution, for libellous speech is disproportionate to the offence. Criminal law does not exist to make prosecutable acts that are essentially private in nature.
  2. By making ostensibly slanderous talk a punishable offence, the state imposes a chilling effect on all manners of legitimate speech.
  3.  It is for this reason that almost every democratic nation of the world has revoked laws criminalising defamation.
  4.  It remains a tool for the powerful and is routinely invoked not just by individuals and governments in positions of authority but also by corporations looking to protect their commercial interests.

India’s blasphemy laws:

  1. Section 153A, which deals with speech that seeks to promote enmity between different communities, and Section 295A, which criminalises speech that outrages religious feelings, is also vestiges of colonialism.
  2. Under the Section 499 of the Indian Penal Code (IPC) as whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation.
  3. The law of criminal defamation is premised on a person’s right to a reputation. Making or publishing “any imputation concerning any person, intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person”, is criminal defamation.
  4. Section 500 of IPC, which is on punishment for defamation, reads, “Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Concerns for the judiciary:

  1. That the Supreme Court has allowed these provisions to remain on India’s books ought to tell us that it records in protecting personal liberty is acclaimed without reason.
  2. In Arnab Goswami vs State of Maharashtra, the judgment noted: “Our courts must ensure that they continue to remain the first line of defence against the deprivation of the liberty of citizens.

Value-Addition: –

 

What is contempt of court?

  • Contempt of court, as a concept that seeks to protect judicial institutions from motivated attacks and unwarranted criticism, and as a legal mechanism to punish those who lower its authority, is back in the news in India.
  • Contempt of court is an act of disrespect or disobedience towards a judge or court’s officers or interference with its orderly process.
  • In case of India, under Section 2(a) of the Contempt of Courts Act of 1971 defines contempt of court as civil contempt or criminal contempt, it is generally felt that the existing law relating to contempt of courts is somewhat uncertain, undefined and unsatisfactory.

 The Contempt of Courts Act, 1971

  • The Law Commission of India (Chair: Justice B.S. Chauhan) submitted its report on the Contempt of Courts Act, 1971.
  • Contempt refers to the offence of showing disrespect to the dignity or authority of a court. The Act divides contempt into civil and criminal contempt. 
  • Civil contempt refers to the wilful disobedience of an order of any court. Criminal contempt includes any act or publication which: (i) ‘scandalises’ the court, or (ii) prejudices any judicial proceeding, or (iii) interferes with the administration of justice in any other manner. 

Landmark Contempt Judgments

1)         Supreme Court Bar Association vs Union Of India & Anr

In this case, the Judge held that procedural aspect for Contempt of Court may still be prescribed by the Parliament so that it could be applicable in the Supreme Court and the High Court. This means that Section 12(1) of the Contempt of Court Act, 1971 which prescribed a maximum fine of Rs. 5000 and imprisonment for a term of six months shall be applicable in this case.

2)         Zahira Habibullah Sheikh & Anr vs State Of Gujarat & Ors

It was held in this case that the punishment that is given for contempt in the Contempt of Court Act, 1971 shall only be applicable to the High Court but for Supreme Court, it acts as a guide. The judgment that was given was not accompanied by rationality; this was worrisome because the Supreme Court has been given great powers that the drafters of the Indian Constitution has also not given.

Way Forward

  1. The uncertainty in Supreme Court judgment is coupled with the prevailing distrust which flows from the Supreme Court in the values of personal liberty, of free thought and expression, what we get is a complete erasure of the rule of law.
  2. The accused in the defamation cases are relying on penal provisions under IPC and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, that supersedes the Vishakha Guidelines on sexual harassment need to address. 

Question: –

Discuss the contempt of court” concept in the light of recent defamation cases. In view of the above, discuss the constitutional validity and competency of the defamation cases in India. 

With Biden, India may need a new template.

Why in News: –

Despite accumulated goodwill, New Delhi needs imaginative engagement to deal with the Democrat-controlled House.

Syllabus:

 GS-2:  Effect of policies and politics of developed and developing countries on India’s interests, Indian Diaspora.

Background:-

  • Indian-Americans are taking over the country, US President Joe Biden has said, referring to the high number of people from the community getting a place in his administration.
  • Despite accumulated goodwill from Indian side, India needs imaginative engagement to deal with the Democrat-controlled House. Because, India does not enjoy bipartisan full support in the “US Congress”.

Message by the India Caucus:

  • The new administration in the United States, of Joseph R. Biden, and the 117th U.S. Congress, two separate branches in the American system of governance, hit the road running with a sense of purpose to ‘heal’ the country and restore its leadership role in the world.
  • The first signal of a possible direction can be interpreted from the recent formal interaction that members of the India Caucus in the House of Representatives had with the Indian envoy in Washington DC.
  • A formal statement by  Sherman on ongoing framer protest the group urged the Government of India to make sure that the norms of democracy are maintained and that protesters are allowed to protest in a peaceful manner with access to the Internet and journalists.

Indian community is a force:

  • Biden has appointed at least 55 Indian-Americans to key leadership positions in his administration ranging from his speechwriter to the NASA, to almost every wing of the government.
  • It is the immense contribution of the Indian-Americans, the second largest immigrant community with strength of four million plus (approximately 4.8 million) people.
  • The massive effort by this highly educated and economically strong community makes it count as one of the most influential groups in the U.S.

Divergence in the preferences of the Indian community:

  • over the past decade-and a-half, a number of Indian-Americans have found their way into various branches of the administration and the Congress.
  • Between 2000 and 2018, the Indian American population grew by nearly 150percent, making it the second-largest immigrant group in America today.
  • The community’s elevated levels of educational attainment and household income render its members valuable campaign contributors and potential mobilizers.
  • Indian Americans do not consider U.S.-India relations to be one of the principal determinants of their vote choice in the election. Because, Kamala Harris has mobilized Indian Americans, especially Democrats.

 Assessments and response:

  • These second-generation members of Indian-Americans have their own individual assessment of developments in India, making it tougher for India to put forward a convincing argument from its perspective to counter perceptions.
  • India, of course, has stepped up its out reach on the Hill and New Delhi enjoys an advantage to the extent that both Mr. Jaishankar and the current Foreign Secretary, Harsh Vardhan Shringla, served as Indian envoys in Washington DC. Both are well-versed with the way the city functions inside the Beltway.
  • Adding sinews to this effort is the pace of engagement by Indian missions. A leading Indian think-tank too opened its U.S. arm to supplement efforts in a city where the hiring of a professional lobby firm in Washington DC is well-accepted practice.

The structures of cooperation with USA:

  • India will hope that the Biden administration does not wholly jettison mechanisms (like the 2+2, Quadrilateral, or Quad-plus)that have proven to be useful during the Trump administration.
  • India might even seek new or revived dialogues on climate change, strategic technology, higher education, or economic ties, as well as membership of the India-led coalitions like the International Solar Alliance.
  • The current scenario challenge to translate the intent expressed at the last India-S. 2+2 meeting, in October 2019, of establishing an India-U.S.-Parliamentary Exchange for formal and reciprocal visits by parliamentarians.

A direction pointer

  • To establishing an India-U.S.-Parliamentary Exchange is because opinion articulated by lawmakers has an amplifier effect and at times determines the path for the administration.
  • The accumulated reservoir of goodwill by Indians should help in defining the future course of bilateral ties; but it would require imaginative engagement to deal with the Democrat-controlled House, making it easier for the new administration to work on its India-centric plans.
  • A test case waits in the form of CAATSA, or Countering America’s Adversaries through Sanctions Act, as India moves ahead to procure the Russian S-400 missile defence system.

Way Forward: –

  • India will also welcome a return by the United States to multilateralism, though it seeks reformed multilateralism. It will continue to be interested in working in issue-based coalitions with the United States and others, including in Asia and Europe.
  • In INDIA-USA relation, India to pick and choose according to where its interests and approaches align such as joining ones focused on regional security or critical technologies while staying out of trade coalitions.
  • There is scope for the two countries to work together, particularly in ensuring democratic resilience in the Indo-Pacific region and the resilience of the rules-based international order especially in “WHO, WTO and UN”.
Question: –India and USA are two large democracies. Examine the basic tenants on which the two political systems are based.

The Haryana bill is constitutionally indefensible, politically cynical

Why in News: –

  New Haryana Bill puts forth Domicile-based preferential policies that indict the economy as a whole, suggesting a pessimism about both education and job creation.

Syllabus:

 GS-2: Government Policies and Interventions for Development in various sectors and Issues arising out of their Design and Implementation.

The Haryana Law: –

  • The right to move freely in the country and reside and settle in any part of it, the right to carry out any trade or profession, is all established rights.
  • The Haryana State Employment of Local Candidates Bill, 2020 requires private companies to set aside for domiciles 75% of jobs up to a monthly salary of Rs 50,000 or as may be notified by the government from time to time.
  • The law is applicable to all the companies, societies, trusts, limited liability partnership firms, partnership firms and any person employing 10 or more persons and an entity, as may be notified by the government from time to time shall come under the ambit of this Act.
  • In July 2019, the Andhra Pradesh government had passed a similar law, which was challenged in court.
  • The Andhra Pradesh High Court had made a prima facie observation that the move might be unconstitutional, but the challenge is yet to be heard on merits.

 Criticism of the bill: –

  1. First, the private sector cannot be subject to the same yardstick as the public sector; imposing reservation would not just interfere with freedom of trade and business, it might also be a form of expropriation.
  2. Given the variety of parties now espousing domicile-based reservation, the argument that the “private sector” can be protected will be an argument in bad faith.
  3. Arguably, the case for reservation for social justice is stronger than the case based on domicile.
  4. Fourth, these bills will open up a new form of competitive ethnic politics. It is odd that a state like Haryana which has benefitted from being part of a cosmopolitan zone like NCR should unilaterally impose reservations.
  5. Fifth, there is patent class discrimination: If you are rich, privileged or highly skilled, there are no entry barriers in accessing any labour market. But we shall put entry barriers on lower skilled migrants; our own internal version of an H-1B visa.
  6. Sixth, the greatest damage the Bill does is to increase the discretionary power of the state, almost taking us back to a license permit raj, where companies will have to bargain, or worse, bribe the state for exemptions. This is the antithesis of regulatory reform.

General Issues:

  1. Even if the Bill is struck down, such a high wire act is meant to fuel the flames of localism. As the Shiv Sena had demonstrated in the ’70s, political parties can bring formal and informal pressure to bear on industries and enterprises, once you make preferential treatment of residents a wedge issue.
  2. Second, the Bill now exposes the bad faith of political parties on private sector reservation more generally.

 Examples:

  1. Andhra Pradesh has mandated 75 per cent reservation for locals;
  2. Karnataka is toying with the idea of reserving all blue-collar jobs for locals;
  3. Madhya Pradesh has announced that public employment in the state be reserved for state residents.
  4. The last time there was such a contagion of domicile-based preferences was in the 1970s, when states such as Maharashtra, Tamil Nadu, Andhra Pradesh issued circulars directing employers to hire local residents.

Supreme Court Judgements: –

  1. In Pradeep Jain vs Union of India, the court had indicated this direction;
  2. In Kailash Chandra Sharma vs State of Rajasthan, the court had warned against parochialism.
  3. The Andhra Pradesh Bill is sub judice in the high court.

 The Legal Issues: –

Two big legal questions come up.
  1. Domicile reservation in jobs – While domicile quotas in education are fairly common, courts have been reluctant in expanding this to public employment.
  2. In 2020, the Madhya Pradesh government decided to reserve all government jobs for “children of the state”, raising questions relating to the fundamental right to equality of citizens.
  3. Issue of forcing the private sector to comply with reservations in employment – For mandating reservation in public employment, the state draws its power from Article 16(4) of the Constitution, is not adequately represented in the services under the State”.
  4. The Constitution has no manifest provision for private employment. By decreeing that only Parliament had the right to make exceptions, Ambedkar ensured that such rules would not be enacted, simply because Parliament would favour uniform rules across India.

 The Government’s Rationale

  1. Providing reservation in public employment is one of the many ways through which the state endeavours to ensure equal opportunity for all citizens.
  2. With public sector jobs constituting only a minuscule proportion of all jobs, legislators wish to rope in private sector to really achieve the same constitutional mandate.
  3. Private industries use public infrastructure in many ways — from accessing land through subsidised allotment to receiving credit from public banks, tax exemptions and in many cases subsidies for fuel etc. 
  4. So, the state has a legitimate right to require them to comply with the reservation policy.
  5. A similar argument was made in requiring private schools to comply with the Right to Education Act, which the Supreme Court also upheld.
  6. Similarly, in 2004, then Congress-led UPA government had taken the first step in this regard.
  7. A Group of Ministers was constituted by then Prime Minister Manmohan Singh to examine the issue of affirmative action, including reservations, in the private sector by initiating consultations with industry leaders to have them voluntarily comply with the policy.

 Global examples: –

  1. Affirmative action is adopted in many countries in the context of race and gender.
  2. For example, in the US, although there is no statutory requirement for employers to have quotas, courts can order monetary damages and injunctive relief, including “such affirmative action as may be appropriate”, for victims of discrimination.
  3. This power comes from the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, colour, national origin, religion, and sex.
  4. The Employment Equity Act in Canada also protects minority groups, especially aboriginals from discrimination in federally regulated industries, even in the private sector.

 Way Forward: –

  1. The bills militate against the ideal that any Indian should be able to countenance the prospect of making a life in any part of India.
  2. Second, they reveal the fact that slogans of “One India” are weaponised, to be used when convenient. In some ways, 75 per cent reservation in private sector employment is a worse form of exceptionalism than other forms of asymmetric federalism like Article 370 that the BJP railed against.
  3. The sociology of the Bill is also interesting: It seems to want to protect, not the most vulnerable workers, but the educated who cannot seem to be able to compete in a tight labour market.

Question: –

The Haryana State Employment of Local Candidates Bill, 2020 is constitutionally indefensible as the Constitution prohibits discrimination based on place of birth. Critically evaluate.

Intimate partner violence: beyond legal definition of consent.

Why in News: –

  There is a need for conceptualising harm caused to women in intimate partner relationships beyond criminal law’s standard of consent.

Syllabus:

GS 1: Social JusticeThe Supreme Court, while hearing an application for quashing the FIR in a promise to marry case recently, granted the accused a stay of arrest for eight weeks.

The Issue:

  • This case spotlights the growing category of “promise to marry” cases — where sexual violence is brought to light in an intimate partner relationship following the accused’s reneging of the promise to marry.
  • Scant judicial attention has been paid to the casteist and patriarchal underpinnings of consent in these cases.
  • There is a need for conceptualising harm caused to women in intimate partner relationships beyond criminal law’s standard of consent.

 How Does ‘Promise To Marry’ Arise?

  •  First, when rape is committed and a promise of marriage is made to restrict the woman from accusing rape.
  • This promise is then manipulated to extract further sexual intercourse.
  • Second, when the promise itself forms the basis of sexual intercourse in a romantic relationship.

SC Position: –

  • The SC laid down the jurisprudence of promise to marry cases in Uday v. State of Karnataka.
  • The accused allegedly raped and impregnated a 19-year-old woman he was romantically involved with, by promising to marry her.
  • The court acquitted him on the grounds that the circumstances of being “madly in love” make promises “lose all significance, particularly when they are overcome with passion and succumb to sexual temptations”.
  • Therefore, Section 90 of the IPC which vitiates consent obtained under misconception of fact or fraud does not apply. 
  • The court attributed the survivor’s pregnancy to her “promiscuity”. It endorsed endogamy by stating that she should have known marrying the accused was difficult given that he was a Brahmin and she belonged to an OBC group.
  • A similar casteist reasoning was employed to acquit the accused in Dileep v State of Bihar.
  • The victim was shamed, even though the accused had promised to marry her in order to silence a past incident of sexual violence.
  • This judgment extends the analysis in Uday’s case.
  • This position has been reiterated in subsequent judgments.

 Concept of Love, Consent and Caste:

  • The language of “love” and “passion” used by the courts to interpret consent in these cases blurs the power dynamics in romantic relationships, particularly in inter-caste relationships.
  • Through both judgments, the SC has advocated caste endogamy.
  • In its recognition of caste as a legitimate barrier to marriage, the court seems to suggest that women who fail to adhere to caste hierarchies ought to pay the price for it.

Criticisms:

  • Undermining of women’s agency and upholding the patriarchal institution of marriage.
  • These critiques fail to contextualise agency within the power dynamics of intimate partner relationships, and invisibles harm caused to women in such relationships.
  • For examples – In a casteist society, Bahujan women have been impregnated and later abandoned owing to caste differences.

 Value-Addition: –

  • The Justice Verma Committee in its report post the Nirbhaya Rape incident suggested that 18.8 per cent of the women are raped by their partners on one or more occasion in India and that the legislature needs to urgently look into the gravity of the situation.
  • “Marital rape is today illegal in 50 American states, three Australian states, UK, New Zealand, Canada, Israel, Soviet Union and very recently South Korea, Sierra Leone, Bolivia among others.”

Way-Forward:

  • An expansive definition of consent under criminal law may not successfully address the intricacies of intimate partner violence, given the risks of over-criminalisation and its disparate impact on the marginalised.
  • Therefore, it is worth reconsidering and redefining harm beyond a criminal legal determination of consent.
  • This requires a feminist expansion of the other kinds of recourses available to address harms.
  • Several countries are adopting restorative justice practices.
  • Investing in understanding harm beyond the penal standard of consent is crucial, especially in a country that denies the existence of intimate partner violence.

Question: –

“Marital Rape is in fact an impingement of a woman’s right to dignity and personal liberty, a violation of her fundamental right.” Explain.

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