Mains Focus-(18th -20th June 2018 )

Table of Contents

Paper-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.: Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.

Governor’s rule in J&K

Why in News

The state of Jammu and Kashmir is all set to see a governor’s rule following the sudden break in ties between BJP and PDP and subsequent resignation of chief minister Mehbooba Mufti.
This will be the eighth time that J&K would come under the Governor’s Rule in four decades. Jammu and Kashmir has come under Governor’s Rule on seven occasions in the last four decades with the first being in March 1977.It will be the fourth time that the state would be placed under Governor’s Rule during NN Vohra’s tenure.

Governor’s Rule and President’s Rule

In India, President’s Rule is implemented in case of absence of an elected government with the exception of Jammu and Kashmir where Governor’s Rule is imposed.
In the event of failure of constitutional machinery in any a state, the President’s Rule is imposed under Article 356 of the Indian Constitution. But in the case of Jammu and Kashmir, Governor’s Rule is imposed for a period of six months under Section 92 of the Constitution of Jammu and Kashmir.
The Governor’s Rule can be imposed for six months after the consent of the President of India. The State Assembly is either kept in suspended animation or dissolved. If the Constitutional machinery is not restored in 6 months, the provision of Article 356 of the Indian Constitution is extended and the President’s rule is imposed.

Special Case for J& K

The imposition of governor’s rule in J&K is slightly different than that in other states. In other states, the president’s rule is imposed under the Article 356 of Constitution of India. In J&K, governor’s rule is mentioned under Article 370 section 92 – ‘ Provisions in case of failure of constitutional machinery in the State.’

Article 370 section 92: Provisions in case of failure of constitutional machinery in the State:

If at any time, the Governor is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the Governor may by Proclamation-
Assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by anybody or authority in the State.
Make such incidental and consequential provisions as appear to the Governor to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provision of this Constitution relating to anybody or authority in the State.
Any such Proclamation may be revoked or varied by a subsequent Proclamation.
Any such Proclamation whether varied under subsection (2) or not, shall except where it is a Proclamation revoking a previous Proclamation, cease to operate on the expiration of six months from the date on which it was first issued.
If the Government or by a Proclamation under his section assumes, to himself any, of the powers of the Legislature to make his laws, any law made by him in the exercise of that power shall, subject to, the terms there of continue to have effect until two years have elapsed from the date on which the proclamation ceases to have effect, unless sooner.
No Proclamation under this section shall, except where it is a Proclamation revoking a previous Proclamation, be laid before each House of the Legislature as soon as it is convened.

Paper 2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Why India urgently needs a national asylum policy?

Who is an asylum seeker, and how is he different from a refugee?

According to the UNHCR, the UN refugee agency, asylum seekers are individuals who have sought international protection and whose claims for refugee status have not yet been determined, irrespective of when they may have been lodged.
Refugees are individuals recognized under the 1951 Convention relating to the Status of Refugees, its 1967 Protocol, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, those recognized in accordance with the UNHCR Statute, individuals granted complementary forms of protection, or those enjoying temporary protection. Since 2007, the refugee population has also included people in a “refugee-like situations”.
At the end of 2015, according to the United Nations refugee body, there were 2, 07,861 persons of concern in India, of whom 2, 01,281 were refugees and 6,480 asylum seekers. India has, over the years, offered shelter to Tibetans, the Chakmas of Bangladesh, Afghans and ethnic Tamil refugees from Sri Lanka.

World recent Refugee Crisis

Civil wars and persecution of certain groups have precipitated the global refugee crisis into the biggest humanitarian crisis in the world. According to Amnesty International, there are around 50 million global refugees right now.

Instability in the West Asia – There is great instability in the west Asia. War between the ISIS and Kurdish rebels in Iraq and Syria, attacks by Saudi Arabia on Houthi rebels in Yemen, the civil War in Syria. All of them combined to displace a large number of people from these countries.
Economic Reasons – A large number of refugees from Africa have been forced to leave their countries in search of opportunities abroad, primarily in Europe.
State Persecution – Rohingya are a sect of Muslims who claim they are original inhibitors of the Rakhine, a state in Myanmar. However, Myanmar considers them illegal immigrants from Bangladesh and has withdrawn citizenship rights from the Rohingyas. This has forced Rohingyas to flee to other countries.
Climate Change – Low lying island nations are threatened by rising sea levels and forced to leave their countries. Such refugees are known as Environmental refugee.

India’s Position on Asylum

India has one of the largest refugee populations in South Asia, but is yet to enact a uniform law that addresses the issue of asylum. Neither is the term ‘refugee’ mentioned in any domestic law. India has not signed the 1951 United Nations Refugee Convention on the Status of Refugees, or its 1967 Protocol that stipulates the rights and services host states must provide refugees.
The lack of specific refugee legislation in India has led the government to adopt an ad hoc approach to different refugee influxes. The status of refugees in India is governed mainly by political and administrative decisions rather than any codified model of conduct.
The ad hoc nature of the Government’s approach has led to varying treatment of different refugee groups. Some groups are granted a full range of benefits including legal residence and the ability to be legally employed, whilst others are criminalized and denied access to basic social resources.
The legal status of refugees in India is governed mainly by the Foreigners Act 1946 and the Citizenship Act 1955. These Acts do not distinguish refugees fleeing persecution from other foreigners; they apply to all non-citizens equally.
Under the Acts it is a criminal offence to be without valid travel or residence documents. These provisions render refugees liable to deportation and detention. Though lack of implementation has ensured that except for a few cases here and there no one really has been criminalized especially refugees.
India, do have signed other International conventions 1984 Torture convention, International Convention on the Elimination of All Forms of Racial Discrimination, 1969, the Convention on the Rights of the Child, 1989 and the Convention on the Elimination of All Forms of Discrimination Against Women, 1981 etc.
In addition to this, India is obliged to adhere the customary international law’s principle of re-foulement. According to which, there can no forceful repatriation.
Further, Article 3 of torture convention states that. “No state party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

In December 2015, Congress MP Shashi Tharoor introduced a Private Member’s Bill called the Asylum Bill, 2015, to provide for the establishment of a legal framework to consolidate and harmonize India’s refugee policies. The Bill is yet to be taken up for consideration

1951 United Nations Refugee Convention on the Status of Refugees

The 1951 Refugee Convention is the key legal document that forms the basis of our work. Ratifiedby 145 State parties, it defines the term ‘refugee’ and outlines the rights of the displaced, as well as the legal obligations of States to protect them.
The core principle is non-refoulement, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom. This is now considered a rule of customary international law.
UNHCR serves as the ‘guardian’ of the 1951 Convention and its 1967 Protocol. According to the legislation, States are expected to cooperate with us in ensuring that the rights of refugees are respected and protected.

Why India didn’t sign the Convention or the Protocol?

There is no official reason stated by India as such but various inferences can be drawn from the past behavior and practices of India as well as from the opinions of various scholars about the same. Following are some reasons:

Definition of “refugee”:

The first and foremost reason is the definition of “refugee “in the convention. India found this definition very narrow. The Indian representative raised this concern at the 54th session of the Executive committee meeting of the United Nations High Commissioner for Refugees (UNHCR) in 2003 by stating that the definition fails to recognize “the fundamental actors which give rise to refugee movements”.
He further said that “most of the refugee movements are directly related to widespread abject poverty and deprivation around the globe…’ particularly in the developing world such as most of South Asia” Thus, there are various categories of displaced people which the convention does not cover.

Threat to sovereignty:

The second reason is the Article 35 of the convention which vests the responsibility of supervising the refugee processing on UNHCR. India does not want its sovereignty to be threatened by any International community.
In addition to this, Indian government along with the governments of other South Asian countries voiced that migration is a matter of bilateral and not multilateral relations and International agreements can restrict their freedom of action. India is also feared uncontrolled infiltration of terrorists, criminals and unwarranted elements.

Unfair treatment by UNHCR:

Borders in south Asian region are porous and each country in the region does not have the political, administrative or military capacity to enforce any strict rules on the population entry. These cross border movements affect the political stability and internal security of the nation along with the change in the religious or linguistic composition within the country.
In 1971, for example, owing to the substantive presence of Bengalis in the North Eastern States of Tripura, Assam, Meghalaya, state authorities were concerned that this Bangladeshi ‘influx’ would lead to indigenous peoples becoming minorities in their own land. In spite of all these problems faced by India, UNHCR sees India as State where local integration of refugees is easily achievable.
It shows that the UNHCR’s solution for refugees in India is their local integration instead of their repatriation, thus leading to a heavy burden on India. The Country which has its own population more than a billion, it is not fair to see that Country as a spot of refugees integration .
India which is still a developing country do not have enough resources to take care of refugees and it is highly unfair to see India as a place of permanent safety for refugees.

Liberal Constitution of India:

India does not have any domestic law for refugees. The refugees are handled under the Passports Act, 1967 and Foreigners Act of 1946. They define person from non-Indian nationality as a “foreigner, independent of his/her specific legal status.
However, there are no laws for protection of refugees, Constitution of India grants right to equality (Article 14) and right to life and liberty (Article 21) to its non-citizens also.

What has been the legal position in the case of Tibetan refugees and Tamil refugees from Sri Lanka?

Tibetans:

The initial wave of Tibetans who arrived in 1959 with the Dalai Lama were regarded as refugees and given asylum. They were given land and housing — which was discontinued for later batches of refugees — and a Registration Certificate (RC) that allowed them to enjoy all privileges of an Indian citizen except the right to vote and work for the government t. The RC is a prerequisite for the Identity Certificate (IC), which is necessary for international travel.

Sri Lankan Tamils:

They are broadly classified as “camp refugees” and “non-camp refugees” based on socio-economic parameters. They cannot vote or own land in India, but are allowed to own cattle and purchase items for domestic use.
Sri Lankan Tamil refugees are issued individual and family identity cards with details of names of family members, age, relationship, gender, date and location of arrival in India, education and their erstwhile address in Sri Lanka.
They are also issued refugee certificates by the revenue inspector of their camp, which is required for their return to Sri Lanka. That means they also issued Identity Certificate (IC).

What relaxations are granted to refugees from Afghanistan, Bangladesh and Pakistan?

In July 2016, the government approved a number of facilities aimed at easing difficulties faced by minority communities — Hindus, Sikhs, Buddhists, Jains, Parsis and Christians — of Afghanistan, Bangladesh and Pakistan staying in India on Long Term Visas.
They were allowed to open bank accounts, purchase property for self-occupation and suitable accommodation for carrying out self-employment, take self-employment, and obtain driving licenses, PAN cards and Aadhar numbers.
Free movement of such persons within the state or Union Territory in which they are staying, transfer of visa papers from one state to another and the waiver of penalty on non-extension of short-term or long-term visas on time, were among other facilities that were allowed. There is no Identity Certificate (IC).

Case of Rohingya Refugees

Who are Rohingya?

The Rohingya are a Muslim minority ethnic to Myanmar living in northern Arakan/ Rakhine State in the western part of the country.
Despite numbering at about 1.33 million, Myanmar’s citizenship laws deny them citizenship rights and treat them to be illegal immigrants from Bangladesh.
As a consequence, for years this community has been at the receiving end of discrimination and persecution within Myanmar at the hands of the Buddhist majority

What actually happened?

In order to escape this persecution and to search for a better life, the Rohingyas try to enter the neighboring countries including Bangladesh, Indonesia, Malaysia, Thailand and India via land/sea routes. However, on account of their statelessness, most countries are reluctant to consider the Rohingyas as refugees and often label them as economic migrants. They are, in fact, forcibly pushed back by these states as they are often considered to a socio-economic and security threat. This international isolation makes the Rohingyas vulnerable to a wide variety of human rights abuses including – trafficking, prostitution and forced labour.
India unlike the other regional powers, has taken a humanitarian approach to the influx of the Rohingyas. In fact, alongside Malaysia, India is the only country in the region which grants refugee status to Rohingyas. While, some Rohingyas has managed to enter India undetected via Bangladesh, a vast majority is detained under the Foreigners Act, 1946 and is sent to the Tihar jail, over which the UNHCR has jurisdiction. After due processing, they proceed to a refugee camp in Jammu.
However, the regular influx will eventually give rise to logistical problems for India, for it doesn’t have the resources to house a large number of Rohingyas. India being non-signatory to UN Convention relating to the status of Refuges, Government deals on case to case basis. Majority of them living in refugee camps with inhumane conditions and some NGOs voluntarily helping them out.

India’s affirmation on Asylum

New York Declaration for Refugees and Migrants

It was adopted at UNGA(United Nation General Assembly)
The declaration expresses the political will of world leaders to protect the rights of refugees and migrants to save lives and share responsibility for large movements on a global scale.
India became a signatory to the declaration ,While doing so India has expressed its solidarity with those forced to flee and agreed that protecting the refugee and supporting the countries that shelter them are shared international responsibilities that must borne more equitably.

Commitments made are:

Protect human rights of all refugees and migrants. It includes rights of girls and women and also promote their full, equal and their meaningful participation to find solutions.
Ensure that all refugee and migrant children receive education within few months of arrival.
Prevent and respond to gender-based and sexual violence.
Support countries receiving, rescuing and hosting large numbers of refugees and migrants

Condemn strongly xenophobia against refugees and migrants and support global campaign to counter it. Strengthen positive contributions made by migrants for their social and economic development in their host countries.
- Improve delivery of humanitarian and development assistance through innovative multilateral financial solutions to those countries most affected.
- Strengthen global governance of migration by bringing the International Organization for Migration (IOM) into the UN system.

Global Compact on Refugee

The global compact is a significant opportunity to improve the governance on migration, to address the challenges associated with today’s migration, and to strengthen the contribution of migrants and migration to sustainable development.

The global compact is framed consistent with target 10.7 of the 2030 Agenda for Sustainable Development in which member States committed to cooperate internationally to facilitate safe, orderly and regular migration and its scope is defined in Annex II of the New York Declaration.

It is intended to:

Address all aspects of international migration, including the humanitarian, developmental, human rights-related and other aspects.
Make an important contribution to global governance and enhance coordination on international migration.
Present a framework for comprehensive international cooperation on migrants and human mobility.
Set out a range of actionable commitments, means of implementation and a framework for follow-up and review among Member States regarding international migration in all its dimensions.
Be guided by the 2030 Agenda for Sustainable Development and the Addis Ababa Action Agenda.
Be informed by the Declaration of the 2013 High-Level Dialogue on International Migration and Development.

Why India needs Asylum Policy

The last decade has seen a dramatic increase in the number of people fleeing violence, war, and natural and man-made disasters. Every country around the world has been trying to come to terms with people flooding in who are not part of the fabric of that particular nation. While India’s fears of being burdened with a flood of refugees from neighboring lands are not totally unfounded, there are serious reasons to focus on creating a policy now.

One, it will ensure that people coming into the country are properly documented, vetted and provided with proper means of sustaining themselves. This is vital given the number of people crossing into our borders and stressing our systems from within.
Two it will push India to put in place the necessary infrastructure to secure its very open, very vulnerable borders. India’s borders on its eastern front and across its shoreline are weak and vulnerable, with very little attention being paid to secure it efficiently. Border patrolling as an adjunct of refugee containment will ensure an additional layer of security.

An ideal refugee policy will define the framework around the most common issues of mass inflow of people, and address both refugees and asylum seekers. It will offer protections while ensuring that the underlying systems don’t corrode or suffer from the weight of people who have lost their homes and their identities.

Also India’s commitment to refugee protection under Global Compact Refugee is evident in its active participation, where it has emphasized the need for clear mechanism for the refugee response regime. Therefore this is opportunity for India to reassess the need for a national asylum policy which is compliant with principles laid down in Global Compact Refugee.

Paper 2: Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

The Criminal Law (Amendment) Ordinance, 2018

In news:

In April, India made world news with the introduction of the death penalty for child rapists.
It is unfortunate how it takes tragic incidents such as the rape of minors to remind us that the laws of the country need serious reconsideration.
The last time a major overhaul in the rape law was thought of was as a consequence of the Delhi 2012 rape and murder case. Before that, the Vishaka incident was a catalyst for the law on sexual harassment.
The ineffectiveness of reactionary lawmaking can be seen in the recently proposed amendments in the Criminal Law and the Protection of Children from Sexual Offences Act (POCSO), 2012, that were a result of the Unnao and the Kathua cases which shook the country’s conscience.

New reforms proposed to the Indian Penal Code, which shall further apply to the POCSO are:

If a person rapes a minor girl below the age of 12 years then the punishment shall be rigorous imprisonment of at least 20 years which, shall be extendable to life imprisonment or death.

Previously the punishment for the same was rigorous imprisonment for at 10 years or life imprisonment, along with fine.

If a person rapes a girl who is below 16 years, then the punishment is rigorous imprisonment of at least 20 years, extendable to life imprisonment.
The punishment for this as per the 2013 criminal amendment is rigorous imprisonment, not less than 10 years and which may extend to life imprisonment.
The ordinance has suggested a few more changes, such as time-bound investigations, appeals and prior sanction from the courts for prosecution of government servants.
The main change it suggests is in introducing the death penalty for the rape of a minor below the age of 12.

Poor implementation of the POCSO Act:

A major provision in the POCSO is that of setting up a Special Juvenile Police unit in-charge of investigating cases of child abuse. This was conceived of as a protection against the police intimidating children, either intentionally or unintentionally.
Yet, no mention of a special juvenile police unit can be found in many cases.
Similarly, with various provisions for the security and the care of the victim under the POCSO — such as the statement of a child should be taken at the residence of a child or a place where he or she is comfortable, by a lady police officer — there’s massive oversight when it comes to enforcement.

In the Kathua case, for instance, the name of the victim was highlighted and essentially advertised on all the media channels even though this is strictly prohibited both under the POCSO Act as well as the IPC under section 228 A.

Issues with death penalty:

The prospect of harsh punishments, such as the death penalty, can, in fact, be a threat to the victim. NCRB data reveals that in more than 96 per cent of child sex abuse cases, the perpetrator is a close relative or a member of the family. This is why children often find it difficult to confess. Parents often try to resolve matters of abuse themselves due to the stigma that is associated with such crimes.
Harsher punishments for the perpetrator can quickly become harsher threats for the victim, as the accused may go to any extent to protect themselves. Worried for their own safety, children may choose not to provide testimony.

Adding burden to the existing dysfunctional system:

Reports on the functioning of special courts under the Protection of Children from Sexual Offences (POCSO) Act, 2012 have demonstrated that one of the main causes for the low rate of conviction under the Act is the lack of infrastructure and manpower in the criminal justice system.
Investigations are regularly inefficient given an understaffed, poorly trained, overburdened police force which has little to no forensic support and is often sympathetic towards the accused.
The timelines for completion of the investigation, for recording of evidence, and for completion of trial are never adhered to because functionaries in the system (police, prosecutors and judges) find them impractical given their case load and the facilities they have to work with.

Instead of addressing these issues which prevent the proper implementation of the law, as it exists, on the ground, the ordinance has, instead, added to the burden of a dysfunctional system.

Issues with mandatory minimum sentences:

The POCSO and the Criminal Law (Amendment) Act, 2013 (CLAA) changed the sentencing regime for sexual offences by introducing mandatory minimum sentences, thresholds a judge did not have discretion to breach even if she felt there were mitigating circumstances that warranted it.

An “anchoring effect” is seen, whereby even if there are aggravating circumstances, judges award only the mandatory minimum sentence.
Another effect of high mandatory minimum sentences is that judges, in order to avoid awarding what they view to be a disproportionate sentence, prefer to acquit the accused.

Therefore, enhanced mandatory minimum punishments in the ordinance are likely to be counterproductive.

Other Issues which cant be neglected

Issue of age determination:

The ordinance has anchored its enhanced mandatory minimum sentences and death penalty on age, without considering the issues that arise with age determination.
Given the unavailability or unreliability of age-related documents in most parts of the country, reliance is placed on ossification tests to prove the age of the victim in cases under the POCSO. Since an ossification test cannot pinpoint an exact age operates with a margin of plus/minus two years, a majority of judges add two years to the upper age limit to conclude that the victim is not a minor.
The same issue is likely to arise when considering whether the victim was below the age of 16 or 12, especially if the judge does not believe the enhanced sentence (or the death penalty) is warranted.

Putting future victims at risk:

The introduction of the death penalty for the rape of children under the age of 12 is likely to put future victims (and there will be future victims because the death penalty has been shown to be no more a deterrent than a life sentence) at grave risk.
Since the punishment for rape and the punishment for murder are now the same, a rapist will have no incentive to spare his victim’s life, especially since her testimony would be the most important piece of evidence against him.

What needs to be done instead?

The government needs to invest in combating the rape culture that condones and encourages rape — by age-appropriate sex education at all levels, by aggressive advertisement campaigns to increase awareness and stimulate conversations about gender bias, everyday sexism, stereotypes, consent and equality, and by making concerted efforts to change the way society raises its sons and daughters.
Also, we as citizens, need to tie these issues to the goals and gains of electoral politics, so that the political parties invest in these long term, and potentially expensive, efforts.

Paper-2 : Issues related to health

International Classification of Diseases (ICD-11)

Why in News

The World Health Organization (WHO) has released its new International Classification of Diseases (ICD-11).

What is ICD?

The ICD is the global health information standard for mortality and morbidity statistics.

ICD is increasingly used in clinical care and research to define diseases and study disease patterns, as well as manage health care, monitor outcomes and allocate resources. ICD has been translated into 43 languages.
More than 100 countries use the system to report mortality data, a primary indicator of health status. This system helps to monitor death and disease rates worldwide and measure progress towards the Millennium Development Goals.
About 70% of the world’s health expenditures (USD $ 3.5 billion) are allocated using ICD for reimbursement and resource allocation.

Highlights of ICD- 11:

ICD-11 identifies health trends and statistics worldwide, and contains around 55,000 unique codes for injuries, diseases and causes of death.
ICD-11, which has been over a decade in the making, provides significant improvements on previous versions.
Also for the first time, it is completely electronic and has a much more user-friendly format. And there has been unprecedented involvement of health care workers who have joined collaborative meetings and submitted proposals.
The new ICD-11 also reflects progress in medicine and advances in scientific understanding. For example, the codes relating to antimicrobial resistance are more closely in line with the Global Antimicrobial Resistance Surveillance System (GLASS).
ICD-11 is also able to better capture data regarding safety in health care, which means that unnecessary events that may harm health – such as unsafe workflows in hospitals can be identified and reduced.
The new ICD also includes new chapters- one on traditional medicine and another new chapter on sexual health.
Gaming disorder has been added to the section on addictive disorders.

ICD purpose and uses:

The ICD is the foundation for the identification of health trends and statistics globally. It is the international standard for defining and reporting diseases and health conditions. It allows the world to compare and share health information using a common language.
The ICD defines the universe of diseases, disorders, injuries and other related health conditions. These entities are listed in a comprehensive way so that everything is covered. It organizes information into standard groupings of diseases, which allows for:
Easy storage, retrieval and analysis of health information for evidenced-based decision-making;
Sharing and comparing health information between hospitals, regions, settings and countries; and
Data comparisons in the same location across different time periods.