SECURE SYNOPSIS: 01 AUGUST 2018
NOTE: Please remember that following ‘answers’ are NOT ‘model answers’. They are NOT synopsis too if we go by definition of the term. What we are providing is content that both meets demand of the question and at the same time gives you extra points in the form of background information.
General Studies – 2
Topic– Indian polity – issues
Why this question
Srikrishna committee recommendations are very important for mains. The whole debate around data privacy, rights of government vs rights of citizen, critique of data regulation proposals will don the editorial columns in the next few days. This question will assist you in preparing the details of the committee’s recommendations and examining it.
Key demand of the question
The question expects us to discuss the overall rationale of the recommendations, quote them and then analyze how far do they help in addressing the privacy concerns of citizens. At the end, a fair and balanced opinion on the recommendations of the committee is to be provided along with suggestions going forward.
Directive word
Critically analyze – When asked to analyze, you have to examine methodically the structure or nature of the topic by separating it into component parts and present them as a whole in a summary. You need to conclude with a fair judgement, after analyzing the nature of each component part and interrelationship between them.
Structure of the answer
Introduction – Discuss the background to the formation of this committee, the necessity of bringing in data regulation post the Puttaswamy judgment of SC. In this context, mention that we need to examine the recommendations.
Body
- Mention the overall principles espoused by the committee, the model of user consent by which they seek to protect data (data principle and data fiduciaries), and discuss how their recommendations fits into that scheme of things.
- Analyze how the draft Bill puts in place a data protection and regulation mechanism and how effective they would be. Compare and contrast the proposals with General Data protection regulations, which can be considered as world leading standards currently.
- Examine whether the proposals fall short of providing full control over personal data to citizens especially when pitted against the government.
Conclusion – Give a fair and balanced view and suggestions which in your opinion will benefit by incorporating them in draft Bill.
Background:-
India is one of the few major democracies in the world without a national privacy and data protection framework. The absence of this was noted in the Supreme Court’s famous Puttaswamy ruling which clarified that there is a fundamental right to privacy, and also, that the state has an obligation to protect this right by enacting appropriate legislation.
Srikrishna committee report important principles:-
- The Srikrishna committee submitted its report and draft Bill to the Ministry of Electronics and Information Technology recently. The Committee was constituted last year to examine issues related to data protection, recommend methods to address them, and draft a data protection Bill.
- This is a landmark report in many ways, given its multiple but critical touch points: a nascent but growing digital economy, the unmapped and uneasy relation between citizens (the committee calls them “data principals”) and data managers (“data fiduciaries”), the state’s contentious role, the legal dilemma of trying to constrain globally mobile data within local legislative jurisdictions, among many others.
Draft bill on date protection:-
- Rights of the individual:
- The Bill sets out certain rights of the individual. These include: (i) right to obtain confirmation from the fiduciary on whether its personal data has been processed, (ii) right to seek correction of inaccurate, incomplete, or out-of-date personal data, and (iii) right to have personal data transferred to any other data fiduciary in certain circumstances.
- Obligations of the data fiduciary:
- The Bill sets out obligations of the entity who has access to the personal data (data fiduciary). These include: (i) implementation of policies with regard to processing of data, (ii) maintaining transparency with regard to its practices on processing data, (iii) implementing security safeguards (such, as encryption of data), and (iv) instituting grievance redressal mechanisms to address complaints of individuals.
- Data Protection Authority:
- The Bill provides for the establishment of a Data Protection Authority.
- The Authority is empowered to:
- (i) take steps to protect interests of individuals
- (ii) prevent misuse of personal data
- (iii) ensure compliance with the Bill.
- It will consist of a chairperson and six members, with knowledge of at least 10 years in the field of data protection and information technology. Orders of the Authority can be appealed to an Appellate Tribunal established by the central government and appeals from the Tribunal will go to the Supreme Court.
- Grounds for processing personal data:
- The Bill allows processing of data by fiduciaries if consent is provided. However, in certain circumstances, processing of data may be permitted without consent of the individual. These grounds include:
- If necessary for any function of Parliament or state legislature, or if required by the state for providing benefits to the individual
- If required under law or for the compliance of any court judgement.
- To respond to a medical emergency, threat to public health or breakdown of public order.
- For reasonable purposes specified by the Authority, related to activities such as fraud detection, debt recovery, and whistle blowing.
- Grounds for processing sensitive personal data:-
- Processing of sensitive personal data is allowed on certain grounds, including:
- Based on explicit consent of the individual
- If necessary for any function of Parliament or state legislature, or, if required by the state for providing benefits to the individual
- If required under law or for the compliance of any court judgement.
- Sensitive personal data includes passwords, financial data, biometric data, genetic data, caste, religious or political beliefs, or any other category of data specified by the Authority.
- Additionally, fiduciaries are required to institute appropriate mechanisms for age verification and parental consent when processing sensitive personal data of children.
- Processing of sensitive personal data is allowed on certain grounds, including:
- Transfer of data outside India:
- Personal data (except sensitive personal data) may be transferred outside India under certain conditions.
- These include: (i) where the central government has prescribed that transfers to a particular country are permissible, or (ii) where the Authority approves the transfer in a situation of necessity.
- Exemptions:
- The Bill provides exemptions from compliance with its provisions, for certain reasons including: (i) state security, (ii) prevention, investigation, or prosecution of any offence, or (iii) personal, domestic, or journalistic purposes.
- Offences and Penalties:
- Under the Bill, the Authority may levy penalties for various offences by the fiduciary including (i) failure to perform its duties, (ii) data processing in violation of the Bill, and (iii) failure to comply with directions issued by the Authority.
- For example, under the Bill, the fiduciary is required to notify the Authority of any personal data breach which is likely to cause harm to the individual. Failure to promptly notify the Authority can attract a penalty of the higher of Rs 5 crore or 2% of the worldwide turnover of the fiduciary.
- Amendments to other laws: The Bill makes consequential amendments to the Information Technology Act, 2000. It also amends the Right to Information Act, 2005, and to permit non-disclosure of personal information where harm to the individual outweighs public good.
- The Bill allows processing of data by fiduciaries if consent is provided. However, in certain circumstances, processing of data may be permitted without consent of the individual. These grounds include:
- The Bill provides for the establishment of a Data Protection Authority.
Criticism:-
- Government is the data collector and user:-
- The committee proposes that the basic requirement of notice-and-consent could be lowered or waived altogether for state functions or social welfare purposes, among others. This also includes provision of services, issuing of licenses, etc. This looks extremely vague and could lead to misuse.
- Impact on RTI:-
- Draft Personal Data Protection Bill, 2018 seeks to amend the RTI Act’s Section 8(1)(j), which states that personal information that doesn’t serve public activity or interest cannot be disclosed unless it is deemed to be of public interest. In other words, personal information can be sought under RTI if it is found to serve a public cause. RTI Act may be rendered absolutely useless in securing access to public records pertaining to public servantsif it is amended.
- It proposes that if such information is likely to cause harm to a data principal and such harm outweighs the aforementioned public interest, can the information be exempted from disclosure. This opens up discretion of deciding the harm and public interest, neither of which are defined.
- The committee and the bill recommends heavy penalties for private sector’s breach of data privacy laws but adopts a lenient stand regarding the state’s infractions.
- On the right to be forgotten:-
- Regarding this, the bill notes that that ‘data principal’ which means the individual or the person providing their data, has a right to “right to restrict or prevent continuing disclosure. But the bill does not allow for a right of total erasure like the European Union’s GDPR does.
Topic– Bilateral, regional and global groupings and agreements involving India and/or affecting India’s interests
Why this question
The conclusion of 10th BRICS Summit and Johannesburg Declaration provide an opportunity to discuss the progress of BRICS as a grouping of unlikely partners. The summit has gained relevance in light of the geopolitical battle lines that have been drawn, the questions raised against free and fair trade and other such issues which presents an opportunity for BRICS to underline its influence and achieve the initial goals that it had set out to achieve.
Key demand of the question
The question expects us to give a brief explanation of BRICS as a grouping of motley countries, the objectives it had set out to achieve, the achievements it has had so far, and the miles still to cover. We need to highlight the declarations made in Johannesburg Declaration and examine how they work to further the BRICS agenda. Our view on the importance and progress of BRICS is to be mentioned in conclusion.
Directive word
Comment – The directive ‘comment’ is usually followed by a statement made by some famous personality, or taken out from a famous book. When you are asked to comment, you have to pick main points and give your ‘opinion’ on them based on evidences or arguments stemming from your wide reading.
Structure of the answer
Introduction – Give a brief introduction of BRICS including the objectives it had set out to achieve.
Body
- In the beginning itself discuss the goals of BRICS – highlight that the formation of BRICS was largely driven by Geo economic agenda and less by geopolitical motives.
- Examine the achievements of BRICS such as NDB, continuous growth in partnership and despite the storm encountered last year in the form of Doklam crisis and aftermath. Discuss that various Ministerial meetings take place throughout the year and the economic agenda that has been advanced so far. Highlight the main points of Johannesburg Declaration and mention how is it taking BRICS forward
- Discuss that off late geopolitics has been an important factor in BRICS due to the presence of divergent geopolitical interests, the inability of India to get BRICS countries to openly support its fight against terrorism etc. Examine whether these factors are preventing BRICS from reaching its potential
Conclusion – Give your view on relevance of BRICS and discuss way forward.
Background :-
- After 10 years of international vicissitudes since its inception, BRICS has developed into a brand-new power promoting the constructive reform of global governance and its main representatives have defended the interests of emerging market economies and developing countries, creating a golden decade.
- After 10 years of development, BRICS’s economic aggregate has increased its portion from 12 percent to 23 percent of the world economy, and their aggregate trade volume has increased from 11 percent to 16 percent of the world total. Its voting share in the World Bank rose to 13.24 percent, its International Monetary Fund (IMF) share climbed to 14.91 percent, and its contribution rate to world economic growth has now exceeded 50 percent.
Initial goals of BRICS :-
- Reform of global financial governance, democratisation of the United Nations, expansion of the Security Council etc.
- Formation of BRICS was largely driven by Geo economic agenda and less by geopolitical motives.
How it has grown its influence in first decade :-
- BRICS has grown in influence, expanded the arc of its interests, and established new institutions and partnerships in its first decade.
- Cooperation:-
- BRICS’ first decade saw each of the members laying down groundwork for cooperation, from identifying areas of convergence on political issues to improving economic ties.
- Today there is a fair degree of cooperation on issues such as trade, infrastructure finance, urbanisation and climate change.
- A multi-layer framework of pragmatic cooperation has been established in dozens of fields, such as economy and trade, finance, industry and commerce, agriculture, education, healthcare, science and technology, culture, think tanks and twinned cities. This pragmatic cooperation has imposed great influence on the international community.
- Ministerial meetings:-
- The level of engagement between its members, ranging from high-level summit and ministerial meetings to various working groups and conferences, has only deepened over that time.
- People to people connections:-
- Moreover, the five members have made modest progress in people-to-people connections. Platforms such as the BRICS Academic Forum and Business Council have proved to be useful in improving their understanding of each other’s industry, academia and government.
- Undoubtedly, the two most notable achievements of the BRICS have been the institutionalization of the New Development Bank (NDB) and the Contingency Reserve Arrangement.
- They mark a shift from political rhetoric to delivering concrete results, alleviating some of the skepticism surrounding the BRICS initiative.
- They offer credible alternatives to the Atlantic system of global governance.
- By giving equal voting rights to its founding members and improving reliance on local currencies, the BRICS members are attempting to create a new, non-Bretton Woods template for the developing world to emulate.
- Johannesburg declaration:-
- BRICS, as per the Johannesburg Declaration, wants the international community to establish a genuinely broad counter-terrorism coalition” as well as supporting the world body’s central coordinating in combatting terrorism.
- To address the threat of chemical and biological terrorism, BRICS countries emphasised the need for multilateral negotiations on an international convention for the suppression of acts of chemical and biological terrorism, including at the Conference on Disarmament.
It is still far from achieving its initial goals :-
- Despite achieving a moderate level of success over the last decade, two recent events have brought the divergence between the BRICS members into sharp focus.
- The first is the recent military standoff between India and China on the Doklam plateau, which has effectively brought to an end the naive notion that a comfortable political relationship is always possible amongst the BRICS members.
- The second is China’s efforts at creating a ‘BRICS plus’ model, a thinly veiled attempt to co-opt nation states, which are integral to its Belt and Road Initiative, into a broader political arrangement.
- Both of these events highlight how the foundational principles of BRICS – respect for sovereign equality and pluralism in global governance – are liable to be tested as the five member countries pursue their own national agendas.
- India-China:-
- India is wary of China’s moves in the South China Sea, in Southeast Asia and the Indian Ocean region. It is more concerned about China’s activities in South Asia in context to the China-Pakistan Economic Corridor (CPEC) project. China hasn’t supported India’s bid at the UN Security Council and the NSG membership.
- Economic differences:-
- The economic irregularities between member countries are a matter of concern itself, for e.g. disparity in per capita income, foreign reserve etc. The countries are active only on economic forum but lacks in voicing concern on global issues like terrorism and climate change.
- China-Russia proximity has been a continuing factor. Given its political and economic travails, Brazil played a low-profile role.
Way forward:-
- They must reaffirm their commitment to a multipolar world that allows for sovereign equality and democratic decision-making. Only this approach will strengthen multilateralism.
- They must build on the success of the NDB and invest in additional BRICS institutions.
- It will be useful for BRICS to develop an institutional research wing, along the lines of the OECD, which can offer solutions distinct from western-led knowledge paradigms and which is better suited to the developing world.
- Countries can consider a BRICS-led effort to meet their commitments under the Paris Agreement on climate change and the UN’s sustainable development goals. This could include, for example, setting up a BRICS energy alliance and an energy policy institution.
- The BRICS nations can also consider expanding the remit of their cooperation to address emerging areas of global governance such as outer space, the oceans and the internet.
- The BRICS members must encourage direct interactions between their constituents. In the digital age, seamless conversations amongst people, business and academia can foster relationships, which are more likely to cement the future of this alliance than any government efforts.
Topic – Effect of policies and politics of developed and developing countries on India’s interests, Indian diaspora.
Why this question
India was recently given the STA-1 status to India, which elevates India to the status of NATO allies in terms of the scope in trade and defense and technology cooperation between India and US. This will have huge implications for India and thus needs to be discussed.
Key demand of the question.
The question wants us to write in detail about the STA-1 status accorded to India by the US. It wants us to express our opinion on whether this will ensure a greater supply chain efficiency, both for defence, and for other high-tech products.
Directive word
Comment- here we have to express our knowledge and understanding of the issue and form an overall opinion thereupon.
Structure of the answer
Introduction– Write a few lines about the trade volume between India and US and mention that STA-1 status recently given to India reflects India’s status as a major defence partner and elevates India’s status as a trading partner to equal that US has accorded largely to its Nato allies.
Body-
- Discuss the implications for India in terms of how supply chain efficiency for defence and other high tech products will be affected. E.g it will reduce the number of licences needed for US exports to India, means India can get easy access to the latest defence technologies; could also mean a leg-up for the foundational COMCASA agreement; Communications,which is one of the three agreements that the US has with its closest military allies, and will allow the installation of high-security US communication equipment on defence equipment being sold to India, thereby facilitating interoperability etc.
Conclusion– Based on your discussion, form a fair and a balanced conclusion on the issue.
Background:-
- The United States granted India Strategic Trade Authorization status STA-1 i.e.., elevated India’s status as a trading partner that it has accorded largely to its Nato allies, mostly for the purposes of speeding up the sale of high-tech defence and non-defence products that are otherwise subjected to strict controls and licensing.
- US has given STA-1 to only 36 countries most of whom are NATO or key non-NATO allies. India has become the third Asian country after Japan and South Korea to get the Strategic Trade Authorization-1 (STA-1) status.
Strategic trade authorization status :-
- STA allows for license exception with regards to exports from the US. This type of US government authorisation allows a certain item to be exported under defined conditions without a transaction-specific license.
- Items eligible for export to STA-1 nations include those under control for national security, chemical or biological weapons, nuclear non-proliferation, regional stability, crime control.
- The categories also include electronics, lasers and sensors, information security, computers and electronics, navigation, telecommunications, aerospace, etc.
Advantages :-
- India’s inclusion is beneficial mostly for the purposes of increasing the speed of sale of high-tech defence and non-defence products that are otherwise subjected to strict controls and licensing.
- The move means that India can get easy access to latest defence technologies, with the reduction of the number of licenses needed for exports from the US.
- It is also a boost for the foundational Communications, Compatibility and Security Agreement (COMCASA).
- Traditionally, the US has placed only those countries in the STA-1 list who are members of the four export control regimes: Missile Technology Control Regime (MTCR), Wassenaar Arrangement (WA), Australia Group (AG) and the NSG. US made an exception for India, which is yet to become a member of the Nuclear Suppliers Group (NSG).
- This exception for New Delhi is intended to send a strong political message to China and the world.
- This recognition facilitates and supports India’s military modernisation efforts with the US as a reliable provider of advanced defense articles.
- STA-1 provides India with greater supply chain efficiency, both for defence, and for other high-tech products. The elevated status would have affected about $9.7 billion worth of Indian goods purchases over the past seven years.
- Sign of trust:-
- It is a sign of trust, not only in the relationship but also in Indian’s capabilities as an economy and as a security partner, because it also presupposes that India has the multilateral export control regime in place which would allow the transfer of more sensitive defense technologies
- It also testifies to the excellent record India has in maintaining non-proliferation of these technologies.
- Looking at current exports from the US to India, 50% of those are eligible now under STA-1.This can free up $2.1 billion in trade, make US exporters more competitive in the global marketplace, help provide India more advanced US technology.
- It helps India in upgrading its defence requirement and also helps India in building a very strong defence ecosystem.
TOPIC: Important aspects of governance, transparency and accountability
Why this question
The article very lucidly explains the amendments carried out in PoCA, the impact of those amendments and how it would affect the fight against corruption, issues which are of immense importance from the point of view of mains.
Key demand of the question
The question expects us to discuss the amendments and examine how they do a balancing act between the two imperatives mentioned in the question. We need to discuss whether the amendments would strengthen the fight against corruption, examine whether the waiver of certain procedural requirements would embolden the public servants etc. A fair and balanced view on this debate is to be mentioned in your conclusion.
Directive word
Critically examine – When you are asked to examine, you have to probe deeper into the topic, get into details, and find out the causes or implications if any. When ‘critically’ is suffixed or prefixed to a directive, all you need to do is look at the good and bad of something and give a fair judgement.
Structure of the answer
Introduction – Highlight how we stand in our fight against corruption. Mention that several important amendments have been proposed in PoCA which merit closer examination.
Body
- Discuss the amendments proposed – mandates prior government approval of the Central or State government to initiate investigation into corruption charges, deletion of the whole of clause (d) of sub-section (1) of Section 13, which defines ‘criminal misconduct’, certain dilution of the definition of ‘known sources of income’, widens the definition of criminal misconduct to include the bribe giver, stipulation for a day-to-day trial and completion of court proceedings within two years.
- Discuss the pros and cons of each of these proposed changes
- Highlight the changes required in your opinion
- Discuss in light of recommendation of 2nd ARC Reports
Conclusion – Give a fair and balanced view on the proposed changes wrt fight against corruption and the way forward.
Background:-
- Parliament recently passed a bill to amend the 1988 anti-graft law by seeking to punish bribe- givers for the first time along with the bribe takers.
Amendments to POCA:-
- Its aim was to enhance transparency and accountability of the government and also to make the provisions under the law stringent.
- Provisions of the bill:-
- Bribe giving:-
- Giving bribe is a specific and a direct offence.
- It makes a provision for providing protection to ‘coerced’ (forced to pay a bribe) bribe-giversif the matter is reported to the concerned law enforcement agencies within a week.
- The Bill has removed the provision which protected a bribe-giver from prosecution for statements made by him/her during corruption trials.
- The Bill covers bribe-giving commercial organisations to be liable for punishment or prosecution. However, charitable institutions have been left out of its ambit.
- Imprisonment:-
- Those convicted of taking bribes can be imprisoned for three to seven yearsbesides being fined under the provisions of the Bill.
- Bribe-givers have also been included in the legislation for the first time and they can be punished with imprisonment for up to seven years, a fine or both.
- The Bill also redefines criminal misconduct and will now only cover misappropriation of property and possession of disproportionate assets.
- Under the amendment to the act, criminal misconduct will now include only two offences (already mentioned above):
- Misappropriating of property entrusted to the banker
- Amassing assets disproportionate to known sources of income
- The Billproposes a ‘shield’ for government servants, including those retired, from prosecution by making it mandatory for investigating agencies such as the Central Bureau of Investigation to take prior approval from a competent authority before conducting an enquiry against them.
- However, it states that such permissions shall not be necessary for cases involving the arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person.
- Another relief that the Bill provides to a public servant is that in any corruption case against him or her, the factor of “undue advantage” will have to be established.
- According to PRS Legislative Research, the Bill provides powers and procedures for the attachment and forfeiture of a corruption-accused public servant’s property.
- Trial:-
- According to the Bill, the trial in cases pertaining to the exchange of bribe and corruption should be completed within two years. Further, even after reasoned delays, the trial cannot exceed four years.
- Forfeiture of property
- This section was introduced for the Special Court to attach and confiscate property, which was earlier done under a 1944 ordinance through civil courts.
- Sanction for prosecution
- A sanction is needed for prosecuting former officials for offences done while in office. The decision on sanction request is to be made under three months which may be extended by a month. Centre may notify about the guidelines.
- Bribe giving:-
Positive Impact:-
- Safeguards incorporated for Honest Officers
- Bill had many provisions to ensure speedy trial of corruption cases, besides providing protection to bureaucrats, even after their retirement, from malicious complaints.
- Brought amendments so that honest performing officer does not get intimidated or his initiatives get killed.
- Banking industry:-
- Prevention of corruption bill (amendment) 2013 is a relief for bankers. Under it, bankers cannot be pulled under the corruption law unless they have accumulated assets more than what they could have obtained with their steady income, or have misappropriated assets entrusted to them
- The amendment comes at a time when the bankers are facing intense scrutiny for their lending decisions which have resulted in NPAs. Bankers have argued for a long time that they should not be prosecuted for lending decisions they made honestly.
- The amendment to the anti-corruption law aims at helping the bankers take business decisions without fear.
- The amendment also intends to empower the public to refuse to give a bribe with provisions of punishment for those who willingly offer bribe to the government officials.
- Forfeiture of property is believed to help avoid a fresh procedure to confiscate property obtained through corruption and to enable court conducting trial to do so itself.
- Experts are also concerned about the pre-investigation approval rule. Also, there was no similar provision in the Act, but a rule similar to it was struck down by Supreme Court.
- In a departure from the earlier anti-corruption law, the current law makes a distinction between collusive bribe givers and those who are forced to give.
Negative impact:-
- The Bill serves to dilute and defeat the whole point of anti-corruption legislation in more ways than one.
- It narrows down the existing definition of corruption, increases the burden of proof necessary for punishing the corrupt, makes things more difficult for the whistle-blower, and strengthens the shield available to officials accused of corruption. And it slips in a diabolic clause that would protect the babu-neta nexus from ever facing any serious anti-corruption probe.
- The older law had a broad definition of a corrupt public official, defining it simply as any person who, while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
- The amendments narrow this definition significantly, by adding the test of intention, meaning prosecuting agencies will have to prove a conspiracy to carry out corrupt acts, rather than simply pointing to disproportionate assets or questionable actions.
- The Bill makes it more difficult to hold someone guilty of disproportionate assets as it raises the threshold of proof.
- Under the old law, the possession of monetary resources or property disproportionate to the public servant’s known sources of income is enough to prove corruption. Now the prosecutor will also have to prove that this disproportionate asset was acquired with the intention of the public servant to enrich himself illicitly.
- The offence of disproportionate assets under Section 13(1)(e) has been made much more difficult to prove and has been diluted
- The proposed amendment makes it more risky for a bribe-giver to give evidence against a bribe-taker.
- Under the old law, if a person makes a statement during a corruption trial that he gave a bribe, it would not be used to prosecute him for the offence of abetment of corruption. The current Bill omits this provision and proposes that bribe-taking and bribe-giving will be equally punishable. This would obviously deter bribe-givers from appearing as witnesses in cases against public officials.
- The bill reduces the chances of prosecution of the corrupt:-
- The existing PCA requires the government’s or higher officials sanction before any serving public servants can be prosecuted under the Act. The proposed amendment extends this protection to retired public servants, if the case pertains to the period when they were in office.
- This provision adds another unnecessary and pointless condition. If a private person approaches the government for sanction to prosecute a public servant for corruption, he would now need a court order to this effect. This additional layer of protection for the accused would discourage victims of corruption and anti-corruption activists from prosecuting corrupt public servants.
- Section 17 A:-
- The bill proposes to insert a new Section 17A that would bar investigating agencies from even beginning an inquiry or investigating the offences under this Act without prior approval. Section 19 of the Act already protects officials from mala fide litigation. If someone wishes to harass an innocent officer without any credible evidence of corruption, the government can refuse to give sanction for prosecution.
- The amendments seek to define criminal misconduct more narrowly, by including just two clauses: if the public servant dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do or if he intentionally enriches himself illicitly during the period of his office.
- This means that if a public servant cannot account for assets or property disproportionate to their known sources of income, then they are presumed to have intentionally enriched themselves illicitly. The changed clauses however, do not account for assets that have been illicitly procured for other people.
- The amendment Bill has not mentioned who the concerned authority is for providing sanctions for investigating a public official.
- Some existing important provisions in the old law are being dropped. These new terms will take decades for getting their interpretations from the Supreme Court.
- Sections 7, 8, 9 and 10 of the existing Act have been deleted and replaced by completely new provisions, with completely new definitions and words. It may now take decades before the new provisions are properly interpreted and settled by judiciary.
- The provision under Section 13(1)(d) has been deleted. This is the provision which is used for involving senior bureaucrats and ministers in corruption cases, since direct acceptance of bribe by them was generally not possible.
- Further, the maximum punishment for this would now be only 7 years imprisonment as against the existing punishment for 10 years.
- Prior permission of the Government or the competent authority will now be required for registering certain corruption offences. Previously, the provision for taking such permission was quashed and set aside by the Supreme Court in 2014 in a writ petition.
- This permission will give immunity to corrupt Government officers.
- Even sanction for prosecution of corrupt public servants would now be needed even after their retirement, giving them one more level of immunity or protection.
Topic– Part of static series under the heading – “Election Commission of India – organization, structure and functioning”
Key demand of the question
The question is quite straightforward in its demand. While answering the second part, relevant court judgements and the established view on this matter should be mentioned. In the third part, our view should be based on suggestions made by experts in the past.
Directive word
Discuss – the composition and manner of appointment of EC and its members needs to be mentioned.
Examine – The established view and the lead-up to that view needs to be brought out.
Structure of the answer
Introduction – mention the composition and manner of appointment of EC and its members.
Body
- Discuss how the position of SC changed from SS Dhanoa case 1991 to TN Sheehan Case 1995. Mention that the CEC cannot over-ride any decision of the commission by himself. As Chairman of the Election Commission he presides over the meetings, conducts the business of the day and ensures smooth transaction of business of the commission.
- Highlight that SC last year had directed the government to formalize the appointment process of election commissioners. Discuss why this is needed and the nature of reforms needed.
Conclusion – Discuss the relevance of ECI for democracy in India , mention that ECI off late has been caught in certain debates over its independence which is of grave threat, hence establishing the need for reforms.
Background:-
- For the conduct of free and fair elections an independent Election Commissionhas been provided for in Article 324.
Composition and Appointment of members of Election commission:-
- India has a three member election commission. These all are appointed by the President for a term which is fixed by the President. However, conditions of service and tenure of office of the chief election commissioner and other election commissioner are determined by an act of parliament titled The Chief Election Commissioner and Other Election Commissioners (Conditions of Service) Act, 1991. This act has fixed the following
- The chief election commissioner or an election commissioner shall hold office for a term of 6 years or age of 65 years, whichever is earlier.
- The chief election commissioner and other commissioners are paid a salary equal to the salary of a judge of the Supreme Court. On retirement they are entitled to a pension payable to a judge of the Supreme Court.
- All business of the election commission shall, as far as possible, be transacted unanimously. If the chief election commissioner and other election commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority.
- The chief election commissioner shall not be removed from office except in like manner and on like grounds as a judge of the Supreme Court. The other election commissioners cannot be removed from office without recommendation of the CEC.
- Their conditions of service shall not be varied to their disadvantage after their appointment.
- It is the duty of the president or the governor of a state to make available to the commission , when so requested, such staff as may be necessary for the conduct of its functions.
- The Secretariat, which comprises about 300 officials, helps the Commission perform its executive functions. The secretariat is headed by two deputy election commissioners, who are selected by the Commission from the national civil service. On a state level, it’s the chief electoral officer (CEO) who supervises the election work. The Commission selects the electoral officer from senior civil servants recommended by the state government.
Whether Election commissioners and CEC are equal?
- Equal:-
- The President appoints Chief Election Commissionerand Election Commissioners. They have tenure of six years, or up to the age of 65 years, whichever is earlier. They enjoy the same status and receive salary and perks as available to Judges of the Supreme Court of India.
- Under Article 324(5), the CEC cannot suomotu exercise his power of recommending removal of an Election Commissioner because the members of the Election Commission are of equal status.
- Arrogation of any suomotu power will amount to an assumption of superiority, which will obliterate the equality and nullify the independent functioning of the Commission.
- SC in T.N. Seshan vs Union of India:-
- It is only in the case of the CEC that the first proviso to clause 324 (5) lays down that they cannot be varied to the disadvantage of the CEC after his appointment. Such a protection is not extended to the ECs. But it must be remembered that by virtue of the Ordinance the CEC and the ECs are placed on a par in the matter of salary etc
- Not equal :-
- By a reading of Article 324(2), it is clear that the Chief Election Commissioner is a must. However, the number of other Election Commissioners may be optional.
- Second proviso to Article 324(5) states categorically that the ECs shall not be removed from office except on the recommendation of the CEC.
- In S.S. Dhanoa vs Union of India (1991), the Supreme Court held that it is necessary to bear these features in mind because although clause (2) of the article states that the Commission will consist of both the Chief Election Commissioner and the Election Commissioners if and when appointed, it does not appear that the framers of the Constitution desired to give the same status to the Election Commissioners as that of the Chief Election Commissioner. The Chief Election Commissioner does not, therefore, appear to be first among the equals, but is intended to be placed in a distinctly higher position
- In the case of the CEC ,he can be removed from office in the manner and on the similar ground as a Judge of the Supreme Court whereas the ECs can be removed on the recommendation of the CEC.
- There cannot be an Election Commission without a CEC. That is not the case with other ECs. They are not intended to be permanent incumbents.
- Since the ECs were not intended to be permanent appointees, they could not be granted the irremovability protection of the CEC, a permanent incumbent, and, therefore, they were placed under the protective umbrella of an independent CEC.
However, it is logical to conclude that if the Election Commission is to function as a body, such suomotu recommendation by the CEC would nullify the function of the Commission. The Election Commissioners might be working to impress the CEC and try to be in his good books. This cannot be the intent of the Constitution under Article 324(5). Such a situation will never be conducive to an effective functioning of the Commission.
The process of appointment of election commissioner needs to be formalized:-
- Supreme court:-
- India has so far been very, very fair and politically neutral in the appointment of election commissioners but the Supreme Court observed that there is however a legitimate expectation in the Constitution of India that Election Commissioners, who are charged with the free and fair conduct of polls in a democracy, should be appointed through a most transparent and just process formalised by a law enacted by the Parliament.
- There is a gap due to the lack of a parliamentary law which transparently spells out the eligibility, criteria required for a person to be an election commissioner.
- There is nothing to show the procedure followed in selecting them.
- The Election Commissioners supervise and hold elections across the country. Their selection has to be made in the most transparent manner.
- Supreme court also clarified that the appointments were made by the President solely on the basis of the advice given by the political-executive at the Centre. This situation allegedly gives ample room for the ruling party to choose someone whose loyalty is ensured and renders the selection process vulnerable to manipulations and partisanship which is violative of Article 14 of the Constitution.
- In the absence of a proper law, the independence and the integrity of the Commission is being jeopardized and thus public injury is being caused.
- The court has observed that even the selection procedure of the CBI Director is formalised by a written law then why not a constitutional body like Election commission’s selection procedure is not transparent.
- No need of any further formalization of process:-
- Filtering of names of suitable persons for appointment as Election Commissioners is done under the aegis of the Prime Minister and his Cabinet, who in turn advice the President. None other than the Prime Minister is involved in the selection of the election commissioners.
Conclusion:-
- The commission has to generate a sense of faith that the people repose in its integrity. It should function independently and come heavily on the political parties indulging in rigging, booth capturing and other malpractices. A restructured and reformed Election Commission should use cybernetics and encourage new kind of electioneering through MIS.
General Studies – 3
Topic-Effects of liberalization on the economy, changes in industrial policy and their effects on industrial growth.
Why this question
India is the world’s largest importer of defence products and it is very important for us to develop indigenous manufacturing capacities in the sector, in order to give a boost to make in India, seek strategic independence and create employment opportunities. Recent the DAC has approved the SP policy in defence manufacturing in this direction, which needs to be discussed upon.
Key demand of the question.
The question wants us to write in detail about the newly introduced SP policy in defense production and discuss how it aims to revitalise defence industrial ecosystem and progressively build indigenous capabilities in the private sector. What is the strategy envisaged.
Directive word
Discuss- This s an all-encompassing directive which mandates us to write in detail about the key demand of the question. We also have to discuss about the related and important aspects of the question in order to bring out a complete picture of the issue in hand.
Structure of the answer
Introduction – write a few lines about India’s defense imports, present some related statistics and mention about the recent SP policy released by DAC.
Body-
- Discuss the aim of the policy. E.g the SP model aims to create a vibrant defence manufacturing ecosystem in the country through joint ventures between Indian corporates and global defence majors; the government is looking at achieving a turnover of Rs 1,70,000 crore in military goods and services by 2025 and the SP model is envisaged to capitalise this opportunity and contribute to make in India programme.
- Discuss how the policy wants to achieve those aims.E.g all procurements under the SP Model would be executed by specially constituted Empowered Project Committees (EPC) to provide focussed attention and ensure timely execution; specified norms for carrying out various sector specific manufacturing projects; lay emphasis on incentivisation of transfer of niche technology and ensure higher indigenous content in military platforms to be produced in India etc.
Conclusion– Briefly discuss what more needs to be done in this regard and present a fair and a balanced conclusion on the given issue.
Background :-
- Recently government approved key guidelines for implementation of an ambitious policy under which select private firms will be roped in to build military platforms like submarines and fighter jets in India in partnership with foreign entities.
- The Strategic partnership Model was first proposed by the Dhirendra Singh Committee in July 2015. It has been recently adopted by the government under its Make in Indiaprogramme to increase the participation of domestic private firms as well as foreign firms in defence manufacturing in the country.
Strategic partnership policy :-
- At initial stages, the policy is expected to be implemented only in few selected segments viz. fighter aircraft, submarines and armoured vehicles. Government may add additional segments to it in future.
- This model involves creating two separate pools of Indian private companies and foreign OEMs
- It promotes competitive bidding for project procurements, but also allows the Indian companies to tie up with a foreign OEM(Original Equipment Manufacturers)
Why this policy is needed?
- Defence production in India is currently dominated by state-owned manufacturers and lacks autonomy and modernisation.
- India spends huge amount on defence as evident from the recent report of Stockholm International Peace Research Institute (SIPRI), which says that India is world’s largest defence importer during 2012-16.
- The Union Budget 2017-18 has allocated Rs. 3,59,854 crore to the Ministry of Defence and most of this amount goes for defence acquisition. Still, India can’t even compare to its neighbour China in modern warfare and has been unable to protect its borders from being intruded by the militants.
- The major problem behind this is lack of high levels of indigenisation in this The “strategic partnership model” is aimed at making efforts to stimulate defence manufacturing ecosystem in the country through involvement of Indian as well as foreign firms.
How this policy revitalizes defence industrial ecosystem :-
- SP model aims to create a vibrant defence manufacturing ecosystem in the country through joint ventures between Indian corporates and global defence majors.
- All procurements under the SP Model would be executed by specially constituted Empowered Project Committees (EPC) to provide focussed attention and ensure timely execution.
- Global defence majors, which are ready for collaboration with Indian partners and can help the country become a manufacturing hub for military production, will also be incentivized.
- This will give a major fillip towards encouraging self-reliance and aligning the defence sector with the ‘Make in India’ initiative of the Government.
- SP model aims to revitalise defence industrial ecosystem and progressively build indigenous capabilities in the private sector to design, develop and manufacture complex weapon systems for the future needs of the armed forces.
- It promotes high levels of indigenisation, helping the country to become self-reliantin this sector, which was elusive till now.
- Being a manufacturing sector, it has humongous potential to generate employment, the much needed by the country.
- It provides a lucrative option for Indian private sector and start-ups. Their investment in this sector would help the country to stimulate its GDP growth rate.
- It would reduce foreign procurements of defence equipments, thereby, reducing the wastage of our foreign reserves.
- It would generate healthy competition between private sector firms and state-owned firms, thus providing state-owned firms with opportunity to come at par with private sector.
- From the private sector’s point of view:-
- The biggest benefit would be the opportunity to participate in some big ticket contracts estimated to be worth over two lakh crore rupees in the initial phase of execution which were hitherto reserved for the DPSUs and OFs.
- At the same time, the model would also go a long way in bridging the long-standing trust gap between the Indian private sector and MoD, with the latter perceived to be friendlier toward public sector entities.
- Further, Strategic Partners, being private sector companies, are expected to exploit their dynamism, competiveness, profit orientation, and exposure to the civilian sector for efficient utilisation of the technology, manpower and infrastructure developed in the process.
- The development of competitiveness and expertise to compete to win future contracts, which was lacking in the case of DPSUs/OFs because of a constant flow of orders handed over on a platter by the MoD, is something that would contribute to laying a strong and credible foundation for India’s military industrial complex.
- It will serve to enhance competition, increase efficiencies, facilitate faster and more significant absorption of technology, create a tiered industrial ecosystem, ensure development of a wider skill base and trigger innovation, leading to reduction in dependence on imports and greater self-reliance in meeting national security objectives.
Issues:-
- The lack of institutional capacity and ability to guide the new process to its logical conclusion. In the past, several promising measures, especially those connected with the ‘Make’ and ‘Buy and Make (Indian)’ procedures, have failed to yield the desired results because of these shortcomings.
- There is also a concern regarding the long-term viability of SPs largely due to the privileged position enjoyed by public sector entities. It would be futile to expect SPs to make major investments if the government does not provide a level-playing filed to the private sector.
- The initial cost involved in developing such defence ecosystem is very high. As per a report, if India manufactures Kamov helicopters domestically, it would cost India nearly 2.5 times what it pays to Russia for the same.
- It is for sure that once the manufacturing unit will be set up, it would not only focus on domestic requirement but also try for export the products. But Indian logistics sector is still one of the major challenges for country’s export oriented programmes.
- Setting up a manufacturing industry requires large tracts of contiguous land. Since land is a state subject in India, its procurement would be time consuming process.
- There is the sensitive issue of Intellectual Property Rights (IPR),which is one of the reasons why foreign OEMs are generally reluctant to transfer technologies.
Conclusion:-
- The policy can be considered a great initiative in larger national interest as it promotes indigenisation and has extreme potential to generate employment. The huge initial cost can be neglected for the time being as it is one time cost. Once the manufacturing starts, it would balance the cost within 5-10 years time period, and the investment will prove profitable. It will finally prove to be a capacity building initiative for not only the private sector but also of Indian public sector in defence manufacturing.
General Studies – 4
Topic– Part of series of Case studies on Ethics.
- What will be your decision.(250 words)
Key demand of the question.
Same as mentioned in syllabus- This paper will include questions to test the candidates’ attitude and approach to issues relating to integrity, probity in public life and his problem solving approach to various issues and conflicts faced by him in dealing with society.
Questions may utilise the case study approach to determine these aspects.
Structure of the answer
- The question involves both legal as well as ethical issues. The legal aspect will be determined by the level of involvement of Mrs Sandy Tyson- how she managed to influence the award. She may have thereby violated any law,statute , code of conduct which would necessitate legal action against her. The ethical aspect involved is that of the conflict of interest and also misuse of the office.
- After discussing the issues in detail, form a fair and a balanced conclusion on the issue. Be considerate to all the the key facts of the case and form an opinion accordingly.
Answer:-
The case study deals with the situation of one doing their job with probity .The stake holders are Sandy, Mike, Jurist and the University .
The ethical issues involved are :-
The allegation is that Mr. Mike Tyson was not entitled to that particular university fellowship but yet due to his wife’s influence he obtained that fellowship so here there is lack of probity with respect to the employee.
Also the ethical issue is whether Mrs. Tyson has misused her position to gain unfair advantage for her husband so it is an act of nepotism vs whether the fellowship was given to her husband due to merit.
Also whether the allegation that both Mr and Mrs Tyson are racially discriminated.
Lack of transparency and accountability in the process of giving fellowship.
The following are the decisions that can be taken :-
Being a jurist it is my duty to find out the truth and uphold justice. So there is need to order for proper enquiry to find out whether the fellowship was awarded solely on merit and whether due process was followed or Mr. Tyson was awarded the fellowship due to Mrs. Tyson’s influence.
Also regarding the allegations made by Mr. Tyson and Mrs. Sandy that the allegations are made against them due to her being African American. Both her and her husband are subjected to racial discrimination. So these allegations need to be enquired properly with an independent committee and then decisions need to be taken.
If in the enquiry it is found out that Mrs. Tyson is guilty of misusing her position in the university to get her husband the fellowship then Mr.Tyson’s fellowship need to be cancelled and Mrs.Sandy need to be punished for the action she did.
