Paper II.docx

8/16/2019 Paper II.docx

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NITI AAYOG FOR ADMINISTRATIVE PARADIGM

KEY POINTS:

NITI Aayog aims to foster cooperative federalism through structured support

initiatives and mechanisms with the States on a continuous basis, recognising that

strong States make a strong nation.

The body will serve as a 'Think Tank' of the government and would provide the

governments at the Centre and in states with strategic and technical advice on key

policy matters including economic issues of national and international importance.

The rime !inister will appoint the Aayog"s #ice$Chairperson and Chief %&ecutive

'(cer. Asian )evelopment *ank"s former Chief %conomist Arvind anagariya is

tipped to be the +rst #ice$Chairperson.

The Aayog will recommend a national agenda, including strategic and technical

advice on elements of policy and economic matters.

It will also develop mechanisms for village-level plans and aggregae these

progressively at higher levels of government.

As per the resolution, the institutions of governance and policy have to adapt to

new challenges and must be built on the founding principles of the Constitution. 'n

the planning process, it says that there is a need to separate the process from the

strategy of governance.

INFO-CRUX:

The body will have a G!verning "!#n$il comprising State Chief !inisters and

t. -overnors of nion Territories, Regi!nal "!#n$ils to address spe$i%$ iss#es

and $!ningen$ies i&pa$ing &!re han !ne Sae !r a regi!n, and #ll-i&e

!rganisai!nal ra&e(!rk headed )* he Pri&e Miniser. The three layers will

be formed for a speci+ed tenure.

The rime !inister in the new body, will be assisted by a #ice$Chairperson and

full$time members. There will be two par-i&e &e&)ers who will be selected

from leading universities, research organisations and other relevant institutions in


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an e&$o(cio capacity. art$time members will be appointed on a rotational basis.

/our nion !inisters will be e&$o(cio members. There will also be a Chief %&ecutive

'(cer 0C%'1 with a +&ed tenure and in the rank of Secretary to the -overnment of

India. The 2egional Councils will be chaired by the Chairperson of the NITI Aayog,

the rime !inister, or his nominee. *oth -eneral and 2egional councils will have

e&perts, specialists and practitioners with relevant domain knowledge as special

invitees nominated by the rime !inister.

SI3 2'A) %C'N'!IC *%T %4T%N)%) T52'-5 TI*%T In a +rm

step to e&tend the Silk 2oad %conomic *elt to South Asia, by working out a blueprint

of connecting Nepal with the %urasian transport corridor, China has decided to go

ahead. ast month, Nepal formally signed a four$point document endorsing the Silk

2oad %conomic *elt, a pet pro6ect of resident 4i 7inping for connecting Asia with

%urope along a land corridor, with China as its hub. NFO-CRUX: nder the new

Silk 2oute blueprint, the Chinese want to open up the transportation channel from

the aci+c to the *altic Sea, from which would radiate rail and road routes, which

would also connect with %ast Asia, 8est Asia, and South Asia. China wants to

connect with Nepal and South Asia through an e&tension of the 9inghai$Tibet

railway. The rail line from hasa has already been e&tended to Shigatse, Tibet"s

second largest city. The Chinese plan to build two lines from Shigatse. 'ne would

lead to 3erung, the nearest Chinese town from Nepal and the other line would head

to :adong on the India$*hutan border. As per the observers, the rail connectivity

with China will spur the globalisation of the Nepalese economy. 'nce a rail

connection with China is established, Nepalese goods can be transited to the

international markets through the %urasian transportation network. As pointed

out by analysts, Nepal has 6oined a pro6ect that China has marshalled along with

2ussia as its core partner, to counter the 8ashington$led ;Asia ivot< doctrine,

which has the containment of a rising China at its heart.

5%AT5= T5% 2''S%) /N)A!%NTA 2I-5T the nion !inistry of

5ealth and /amily 8elfare suggested making health a fundamental right, similar to


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education. INFO-CRUX: This key proposal in the draft National 5ealth olicy, >?@,

suggests making denial of health an oBence. Thirteen years after the previous

health policy, the draft addresses the issues of universal health coverage, reducing

maternal mortality and infant mortality, access to free drugs and diagnostics and

changes in laws to make them more relevant. The proposal for a National 5ealth

2ights Act comes after a debate on whether India should pass a *ill to make health

a fundamental right as was done for education. !any industrialised nations have

laws that do so. !any of the developing nations that have made signi+cant progress

towards universal health coverage, such as *rail and Thailand, have done so and

such a law is a ma6or contributory factor. A number of international covenants to

which India is a 6oint signatory gives such a mandate and this could be used to

make a national law. Courts have also rulings that, in eBect, see health care as a

fundamental right and a constitutional obligation Dowing out of the right to life.

N%8 'IC: /2A!% 8'23 )2A/T '/ NATI'NA 5%AT5 'IC: >?@ 2''S%S

ST%S T' I!2'#% T5% CA2% )%I#%2: S:ST%! 3ey proposals %nact a National

5ealth 2ights Act to make health a fundamental right. 2aise public health

e&penditure to >.E of -) 02s. F,G?? per capita1 %&plore creation of a health

cess on the lines of education cess %nsure universal access to free drugs,

diagnostics in govt. hospitals States may voluntarily opt to adopt the Act through

a resolution in the egislative Assembly KEY POINTS This National 5ealth olicy

addresses the urgent need to improve the performance of health systems. It is

being formulated at the last year of the !illennium )eclaration and its -oals, in the

global conte&t of all nations committed to moving towards universal health

coverage. -iven the two$way linkage between economic growth and health

status, this National 5ealth olicy is a declaration of the determination of the

-overnment to leverage economic growth to achieve health outcomes and an

e&plicit acknowledgement that better health contributes immensely to improved

productivity as well as to eHuity. It proposes that the Centre shall enact, after due

discussion and on the reHuest of three or more States, a National 5ealth 2ights Act,

which will make ensuring health as a fundamental right, whose denial will be

6usticiable. The States which have achieved a per capita public health

e&penditure rate of over 2s. F,G?? per capita 0at current prices1 should be in a

position to deliver on this and though many States are some distance away, there


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are States which are approaching or have even reached this target. The current

government spending on health care is a dismal @.? per cent of gross domestic

product 0-)1, one of the lowest in the worldJ this translates to 2s.KL per capita in

absolute terms. The draft policy has addressed this critical issue by championing an

increase in government spending to >. per cent of -) 02s.F,G?? per capita1 in the

ne&t +ve years.

C'NC%2NS '/ '#%2AS IN T2A)% ACTS In India, the multiple trade

pacts inked with the same country, has triggered two undesirable conseHuences.

The signing of the multiple pacts with same country 0under diBerent blocs1 results in

the possibility of three sets of Mrules of origin" norms and Mnegative lists" for imports

in the future. These pacts have led to a general confusion within Indian industry on

the multiplicity of rules. It has also resulted in a sharp increase in the discretionary

powers of those manning the customs posts. The rationale for signing these pacts

by the earlier government was geopolitical reason. The new government is now

seeking a review of the economic impact of such pacts. Industry has raised

concerns that besides the technical di(culties, there are issues regarding the

opening up of the Indian markets to imports from non$/TA partners, especially from

China. India has signed separate /TAs and cooperation agreements with Thailand,

!alaysia and Singapore. All three countries are also AS%AN members. India has also

concluded pact on services and investment in with the AS%AN in September >?@.

%arlier in >?@?, a pact covering trade of goods was signed. 8ith Nepal, India already

has a trade pact. The Indo$Nepal Trade Treaty was signed in @KK and revised in

>??K. There is another agreement on South Asia /ree Trade Area 0SA/TA1, under

which Nepal is included. It was signed in 7anuary >??. *esides this a pact with the

*ay of *engal Initiative for !ulti Sectoral Technical and %conomic Co$operation

0*I!ST%C /TA1 is on the anvil. India also has an /TA with Sri anka since !arch

>???. The nation is also part of both *I!ST%C and SA/TA blocs. The government

contends that the Certi+cate of 'rigin would be the overriding factor in deciding

preferential access from a country. The industry argues that the norm is already

under misuse. In addition to this there is no roadmap to subsume bilateral deals


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with multilateral pacts over a given period of time. This creates further confusion on

multiple pacts.

85%N N'T T' S% '8%2 Nehru was severely criticised by the +rst

speaker, -. !avalankar, who, in @K?, wrote= ;The procedure of the promulgation of

ordinances is inherently undemocratic. 8hether an ordinance is 6usti+able or not,

the issue of a large number of ordinances has, psychologically, a bad eBect. The

people carry an impression that government is carried on by ordinances.< /urther, in

@K, he wrote= ;8e, as the +rst ok Sabha, carry a responsibility of laying down a

tradition. It is not a Huestion of present personnel in the government but a Huestion

of precedentsJ and if this ordinance issuing is not limited by convention only to

e&treme and very urgent cases, the result may be that, in future, the government

may go on issuing ordinances giving ok Sabha no option but to rubber$stamp

OthemP.< !embers of the Constituent Assembly were apprehensive about giving the

e&ecutive ordinancemaking powers. *oth 5.N. 3unru and 3.T. Shah called for

restricting these powers through greater legislative oversight. Neither the nited

States nor the nited 3ingdom confers such powers on the e&ecutive. In India, these

powers are the legacy of the *ritish 2a6 and -overnment of India Act, @KF.

!avalankar"s prophetic observations came true. *etween @K> and >?@, as many

as G ordinances were promulgated by the president in the name of emergency.

The record of governors in promulgating ordinances is far more depressing. Take

*ihar, for e&ample, where between @KL and @KG@, the governor promulgated >

ordinances, while the assembly enacted only @GK laws. The ape& court rightly

observed= ;The power to promulgate an ordinance is essentially a power to be used

to meet an e&traordinary situation and it cannot be allowed to be perverted to serve

political ends.< /urther, the court said, ;If the e&ecutive were permitted to continue

the provisions of an ordinance in force by adopting the methodology of re$

promulgation without submitting to the voice of the legislature, it would be nothing

short of usurpation by the e&ecutive of the law$making function of the legislature.<

/reHuently passing ordinances violates the principle of separation of powers. The

e&ecutive taking over legislative business is nothing but a subversion of the

democratic process, the very core of constitutionalism, and the idea of limited


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government. while ordinances have the same eBect as laws, their promulgation is

not preceded by debates and does not reDect the will of the nation. egislative

malice should certainly be beyond the pale of 6udicial review, but ordinances should

be sub6ect to close 6udicial scrutiny. The Constitution itself does not treat an

ordinance at par with an act. The former is a temporary measure while the latter

stands until it is repealed. An ordinance is certainly inferior to legislation and thus

cannot have the same protection from 6udicial review.

''3IN- A8A: /2'! ASSA! *arely a week after eshawar, there was

another attack, this time within our own borders. At least G@ Adivasis, who form the

ma6ority of the labour force on Assam"s tea plantations, were gunned down in

Sonitpur and 3okra6har districts. *odoland, which comprises the four districts of

3okra6har, dalguri, Chirang and *aksa, has been burning for years now. The ethnictensions that cut through the land, fuelled by militancy, are palpable even to the

occasional visitor. Since @KK, it has been the Adivasis or *engali$speaking !uslims

who become victims in every fresh bout of violence. The political alienation and

social e&clusion of these communities by the *odos are rooted in the misplaced

6usti+cation that they are non$natives. Assam"s Adivasis, who were brought in from

central India to work in the tea gardens of Assam, are denied the Scheduled Tribe

status that their counterparts in other states en6oy. !eanwhile, *engali !uslims are

stigmatised for being ;illegal< immigrants. /rom @KGL, the *odos intensi+ed a long$running political and linguistic$cultural movement for autonomy, marked by

episodes of violence. After @ years, the Centre responded to *odo demands,

establishing the *odoland Territorial Autonomous )istricts 0*TA)1. In the process,

the *odos were able to acHuire political and social dominance over other, smaller

groups that also demanded autonomy. It is ironic that the *odos, who en6oy political

power, social legitimacy and economic authority in the *TA) today, are gripped with

the fear of becoming a minority in their own lands. the patterns that have emerged

in the recent history of violence in *odoland tell a diBerent story. They point towards

the systematic targeting of minorities and smaller ethnic groups by militants. The

Nellie massacre, where armed men of the alung tribe cut down at least F,???

*engali !uslims, happened F@ years ago. 8omen and children had been the ma6or

victims of that brutality as well.


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#'TIN- /2'! A*2'A)

arliament passed the 2epresentation of the eople 0Amendment1 Act in >?@? to

introduce Section >?A that enables a person who is a citien of India, and is away

from her ordinary residence in India for employment, education or other reasons, tobe eligible to be registered as a voter in the constituency mentioned in her Indian

passport= before that amendment, only ;ordinary residents< could cast their vote.

Although the >?@? amendment intended to include N2I participation in national

politics, Section >?A had reHuired N2Is to be physically present in their respective

constituencies at the time of elections. !aking it impractical for voters, this

reHuirement defeated the intention of the legislature. A petition was +led in the

Supreme Court praying that Section >?A of the Act be read down so as to allow N2Is

to vote from abroad without having to be present in India. The petition argued that

the provision was in violation of Article @ of the Constitution to the e&tent that it

impliedly treated persons on a diBerent footing based on economic classi+cations.

>?T5 A8 C'!!ISSI'N S*!ITS >F2) 2%'2T

The aw Commission of India 0CI1 in its recent >Frd 2eport has recommended

reforms that can support this economic growth from a legal perspective, recognising

the optimism in Indian markets, driven by a government that is encouraging growth

in trade and commerce. These are much$needed reforms in a growing economy

where commercial disputes are often comple& and of high value. The CI has

recommended the establishment of a commercial division in the 5igh Courts to

ensure speedy disposal of high$value commercial suits.

T5% )%A)'C3 IN N%A

The political turmoil in Nepal continues as the prospects of reaching a consensus

over a new draft Constitution still appears bleak. The Constituent Assembly was

e&pected to promulgate a new Constitution on 7anuary >>, but the political parties

were unable to resolve their diBerences in order to complete the task. The intense

optimism that accompanied the nation"s transition from being a monarchy to a

republic about a decade ago has turned into dismay with the political parties

repeatedly failing to deliver on their promises. Nepal witnessed a transition in @KK?


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from authoritarian monarchic rule to a constitutional monarchy, followed by a

decade$long !aoist insurgency that ended in >?? with a peace agreement and the

overthrow of the monarchy in >??G. The Interim Constitution of >??L created a ?@$

member Constituent Assembly that also doubled as arliament until a new

Constitution was enacted. The !aoists emerged as the ma6ority party in the April

>??G elections, but the Constituent Assembly failed to meet its >?@> deadline and

so the Assembly stood dissolved and fresh elections were called. The second

Constituent Assembly that was convened in 7anuary >?@ also failed to draft a

Constitution. 2ivalry and sHuabbles amongst parties are the main reasons for the

state of political dysfunction. In the ma6ority is a coalition of the Nepali Congress

and the ni+ed !ar&ist$eninist 0!1 party that has a two$thirds ma6ority in the

Assembly. The !aoist party, which performed dismally in the second round of

elections, has partnered with the !adheshi !orcha, a coalition of regional parties

from the southern plains. /ederalism has become one of the most contentious

issues to be resolved by the Assembly. This debate is closely tied to issues of

identity and eHuality in a diverse nation with hundreds of communities, dialects and

cultures. The ethnic and regional parties demand a federal structure that recognises

and grants political autonomy to their groups, while its opponents warn that such

sectarian politics threaten the country"s uni+ed national identity by fuelling ethnic

conDicts among groups. This genuinely signi+cant problem of creating and

rede+ning the essence and identity of a new constitutional democracy is, however,

being 6eopardised by power struggles among political parties that are e&ploiting and

polarising the diversity of the regions for their own personal gains.

NC%A2 )%A N' CAS% /'2 C%%*2ATI'N

The importance of supplier liability is illustrated by the /ukushima nuclear disaster

in >?@@. 8hen the reactors were hit by the tsunami that year, the weakness of the

-eneral %lectric 0-%1 !ark I design was cruelly e&posed. The reactors" inadeHuate

containment was unable to prevent the spread of radioactivity when the cooling

systems failed and pressure built up inside the reactors.

%C T' C'N)CT %2A)


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According to Chief %lection Commissioner 5.S. *rahma, the %lection Commission

will conduct an electoral roll puri+cation and authentication drive 0%2A)1 by linking

electoral rolls with Aadhaar numbers from !arch @ to August @. The linking will,

however, be voluntary and has nothing to do with the right to vote. The e&ercise will

largely help +nd out duplicate or multiple entries of voters on rolls and fake voter

cards. It will also help prevent impersonation during elections. The seeding of

Aadhaar number with %IC under the National %lectoral 2olls uri+cation and

Authentication rogramme 0N%2A1, will end duplication of electors database by

weeding out fraudulent 0duplicate, bogus, ineligible and shifted1 %IC Card holders.

N%2A also proposes linking of mobile number and e$mail address to provide poll$

related information to voters. It will also allow electors to voluntarily disclose

multiple entries pertaining to him, followed by disposal of such cases by the

electoral registration o(cer 0%2'1 within @ days. The programme will also allow

correction of errors in %IC database on production of cogent documentary

evidence, besides allowing improvement of image Huality of elector by borrowing

better photos from the I)AI database.

%!'8%2IN- T5% STAT%S

The broad contours of a cooperative federal polity where the Centre and States

engage as eHual partners in development is now emerging after the government on

Tuesday accepted the recommendations of the /ourteenth /inance Commission. The

//C, headed by former 2*I -overnor :.#. 2eddy, has broken new ground by

recommending a move away from scheme and grants$based support to States to a

greater devolution of funds from the Centre"s divisible pool of ta& revenues. Thus, it

has recommended that the Centre share > per cent of the divisible pool with the

States, which is @? percentage points higher than what is the case now. *y

accepting the recommendation despite the fact that it would lead to a sharp drop in

its own share of revenues at a time of +scal pressures, the Centre has sent out an

uneHuivocal signal of its commitment to the principle of Mcooperative federalism".

The phrase was +rst mentioned by rime !inister Narendra !odi in the conte&t of

his decision to replace the lanning Commission with the NITI Aayog. Indeed, the

//C"s report, along with the setting up of the NITI Aayog and the consensus on the

implementation of the -oods and Services Ta&, are important components of the


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emerging federal landscape where the Centre confers greater freedom and

responsibility on the latter by devolving greater resources to them. ConseHuent to

the higher devolution of funds, the Centre is likely to re$evaluate several schemes

that it sponsors for the States. It is a fact that some States have been weighed

down by the need to cough up their share of funds for Centrally sponsored schemes

even if such schemes are not relevant to their needs. /or e&ample, for a State such

as 3erala with its high literacy levels, a scheme to promote primary education is not

relevant, 6ust as one promoting power generation is not relevant to a power$surplus

State such as -u6arat. The key to the success of this e&periment in cooperative

federalism lies in how well the States use the higher revenues and the

accompanying freedom to frame their development priorities. Some of the

betterdeveloped States such as Tamil Nadu might feel aggrieved at a reduction in

their share of devolved funds, ironically because of their better development

metrics relative to other States. *ut this is federalism at work, because the

resources freed up thus go to support another State that might be lagging behind

on development parameters and per capita income. 8hat is important is whether

the //C has adopted logical and fair measures while designing the allocations Q

which it indeed has done.

NATI'NA %%CT'2A 2' 2I/ICATI'N AN)

AT5%NTICATI'N 2'-2A!!% The %lection Commission of India has launchedNational %lectoral 2oll uri+cation andAuthentication rogramme 0N%2A1 throughoutthe country with the prime ob6ective of bringing atotally error free and authenticated electoral roll.Key Points:)uring the programme, %IC data of electorswill be linked with Aadhar data of I)AIfor the purpose of authentication. N%2Awill focus on improving image Huality of electors along with sorting issues like

corrections of errors etc.%lectors have been provided the facility tofeed their respective Aadhar number throughsms, email, mobile application and National#oters Service ortal 0N#S1 using webservices through election commission website.%lectors can also feed Aadhar number bymaking a call at @K? to state call centres orby submitting the details of Aadhar number


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and %IC number in a hard copy of duly+lled up /orm along with photocopy of boththe documents, namely %IC and Aadharcard.*esides, collection and feeding of Aadhar willalso be done by %lectoral 2egistration '(cer

0%2'1 by organiing Special Camp, #oter/acilitation Centres, e$Seva centres andCitien Service Centres authorised by the)%'s. *ooth evel '(cers 0*'s1 will alsocollect the details of electors during door todoor survey. To ensure ma&imum public participation,nationwide special camps will be organiedby the %lectoral 2egistration '(cer on@>.?.>?@. The National %lectoral 2ollsuri+cation and Authentication rogramme0N%2A1 will be launched in the nion

Territory from !arch K.nder N%2A, facility has also beenprovided for voluntarily )isclosure of !ultiple%ntries by the #oters. The electors withmultiple registrations in electoral roll0s1 areadvised to +ll /orm$L for deletion of theirnames from the places e&cept where theyordinarily reside. The electors may submit/orm$L through 8eb ortal of N#S or at%2's /acilitation Centres RSpecial CampsR'ther Centres such as %$Seva, CSC and so on.

!')I"S SA-A2 !AA

To realise India"s full strategic potential in theIndian 'cean, !odi will need to focus on threethings. 'ne is to boost India"s own civilian maritimeinfrastructure, which has become terribly creakyand utterly inadeHuate for a country so dependenton the seas for its economic life.Second, India needs to ramp up its capabilitiesto take up ma6or maritime pro6ects in othercountries. China has stolen a march over India inthis area simply because )elhi had gone to sleep.*ei6ing"s pro6ects in the neighbourhood have givenIndia a wake$up call, but )elhi does not have thecapacity or a policy framework to bid for ande&ecute ma6or infrastructure pro6ects in the Indian'cean littoral.

Third, India needs to lend some vigour to itsdefence diplomacy in the region. Although )elhi


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talks the talk on being a ;net security provider


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that the 2TI Act is eBectively null and void. *utthe real issue is not only about whether the CICcan or cannot enforce its orders. It is also aboutwhether political parties should be under the 2TI.eople also ask whether companies and N-'sshould come under the 2TI. The spirit behind the

Act is that organisations that use or control publicresources need to be accountable to the public andopen to scrutiny.

About transparency If we dig deeper, the real Huestion is this= whatare parties afraid of Their apparent ob6ection thatminutes of internal meetings of a political party Qthat discuss party strategy or suitability of candidates for ticket distribution for e&ample Qcannot be made public, are e&cuses. It can easily

be dealt with by suitable e&emptions which are inany case available under the e&isting 2TI Act. Thereal fear is e&posure of their +nances.

TE .,DGMENT TAT SI/EN"ED SE"TION 00A

Not legitimate defencesArticle @K0@10a1 of the Constitution guaranteesto citiens a right to freedom of speech ande&pression. The immediately succeeding clause,Article @K0>1, however limits this right in allowing

the state the power to impose by law reasonablerestrictions in the interests, among other things, of the sovereignty and integrity of India, the securityof the state, public order, decency or morality,defamation, or incitement to an oBence. Accordingto the petitioners in Shreya Singhal, none of thesegrounds contained in Article @K0>1 were capable of being invoked as legitimate defences to the validityof Section A of the IT Act. They also argued thatthe provisions of Section A were contrary to basictenets of a valid criminal law in that they were toovague and incapable of precise de+nition,

amounting therefore to a most insidious form of censorship. /urther, in the petitioners" argument,Section A produced a chilling eBect that forcedpeople to e&purgate their speech and e&pressionsof any form of dissent, howsoever innocuous.

Challenging other provisions The 6udgment in Shreya Singhal however didnot concern itself only with Section A. There


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were other provisions of the IT Act, Section KA Qand its concomitant rules Q and Section LK, whichwere also challenged by the petitioners. The +rstaccords the government the authority to block thetransmission of information, including the blockingof websites, when it is necessary or e&pedient to do

so, for among other reasons, the interest of sovereignty and integrity of India, public order orfor preventing incitement to the commission of anycognisable oBence. And the second grantsprotection, under certain limited circumstances, tointermediaries 0websites such as /acebook and

:ouTube, for e&ample1 for content published byindividuals who use their platforms. The courtstruck neither of these provisions down. It foundthe law in both instances to contain su(cientsafeguards against governmental abuse. %ven if onewere to consider these aspects of the decision as

detrimental, in some way, to our civil liberties, anysuch concerns, at this 6uncture, ought to onlyrepresent minor Huibbles.

.,VENI/ES NEED REFORM+ NOT PRISON

Can’t determine cause and eect The edi+ce of the proposed system stands onthree Dawed assumptions= children are as culpableor blameworthy as adultsJ it is scienti+cally possibleto determine maturity and mindset beyond

reasonable doubtJ and the transfer system willeBectively deter 6uvenile crime and enhance publicsafety, particularly of women.Advances in neuroscience and studies by the2esearch Network on Adolescent )evelopment and

7uvenile 7ustice at the !acArthur /oundation, .S.,show that the human brain undergoes key physicalchanges from the ages of @ to @G, and thiscontinues right until the mid$>?s. This evolutionaryprocess of the brain primarily concerns riskassessmentbehaviour that is directly tied to whatwe term as ;maturity


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;adolescents are less culpable than adultsbecause adolescent criminal conduct is driven bytransitory inDuences that are constitutive of thisdevelopmental stage. *y nature of their psychobiologicalpro+le, adolescents are greatly inDuencedby their environment, and too immature to weigh

the conseHuences of their actions.<

Jail doesn’t reduce violent crime)espite ample evidence that punitive laws donot improve public safety or deter 6uvenile crime,the government is bent on importing a failed8estern model.

Instead of dealing with the root causes of 6uvenile crime, such as poverty, broken families,unregulated access to pornography, or the failure

of the child protection system, the governmentseems to be blindly targeting adolescents. This issurely an erroneous strategy to protect women orto assuage the public outrage after the )elhi gangrape, given that these 6uveniles will graduate fromadult prisons as a much higher risk to thecommunity.

It should not be forgotten that making childrenface an adult criminal court would mar the prospectof their rehabilitation. The Supreme Court has notseen any special reason to amend the present

6uvenile law. Nor did the 7ustice 7.S. #ermaCommittee, which made far$ reaching recommendationson the legal framework for treating se&ualoBences, suggest such changes. The governmentshould stick by the .N. Convention on the 2ightsof the Child, which treats everyone up to @G as achild.

TE 1RI"2S TO RE1,I/D I1SA

The rise of B!C"

I*SA was visualised as the coming together of three great democracies of the developing world,all three, multi$ethnic, multi$religious, multicultural,committed to the rule of law in international aBairsand the strengthening of multilateral institutions.I*SA, its founding heads of government said, wouldnot 6ust be a trilateral gathering of o(cialsJ it wouldalso facilitate the coming together of businesses and


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civil societies in these three democracies.

aunched with much fanfare and promise, asan association of developing country democraciesthat believe they have a right to claim permanentmembership of the nited Nations Security Council0NSC1, I*SA has been overshadowed over thepast few years by that other acronym without anad6ective, *2ICS. aunched by 2ussia andrepeatedly in6ected with life by China, *2ICS hasmoved beyond ritual to claim for itself the status of being a counterpoint to the -roup of Seven 0-L1.Cleverly manipulated by 2ussia and China, andwith India adding purpose to it with its sponsorshipof the idea of a *2ICS New )evelopment *ank,the summit of the +ve$nation *2ICS gets ,?,???search results on -oogle, compared to the GG,>??

results for an I*SA summit.*ut the issue is not about such trivial diBerences. The fact is that the political leadership of both 2ussiaand China have shown greater commitment to theidea of *2ICS, and pushing their anti$8est agendathrough it, than have the political leadership of *rail, India and South Africa to I*SA, and to itspro$democracy agenda. I*SA observers Q and thereare not too many of them around Q believe thatChina has been successfully inDuencing SouthAfrica"s current leadership to ignore I*SA and paymore attention to *2ICS.

eviving !B"AInterestingly, though, there seems to be achange in India"s stance on this score. rime!inister Narendra !odi signalled a renewedcommitment to the goal of NSC membership.

The N governance system, as indeed that of allthe post$Second 8orld 8ar multilateral institutions,has become moribund. The bankruptcy of theNSC is all too visible in its inability to deterunilateral action by powerful countries. So, if the

NSC had failed to prevent action by the nitedStates in IraH, it failed to thwart 2ussian action inCrimea and Saudi Arabia"s bombing of :emen.Against this backdrop, the voice of the three greatdemocracies of the developing world would carryweight, if properly and appropriately articulated.*ut I*SA need not be about NSC alone. The threecountries have some common security concerns.


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)rug tra(cking, money laundering and terrorismis one such. !aritime security is another. 7ust asthe world has sought stability and the rule of lawin the Indo$aci+c region, I*SA could articulatethe need for maritime peace, stability and the ruleof law in the Indian 'cean and the South Atlantic.

If *rail dominates the South Atlantic and Indiadominates the Indian 'cean, South Africa sharesa coastline with both oceans.

As #$ast%West’ bridge*eyond the potential for deeper and widerbilateral economic relations, I*SA have sharedpolitical concerns. 8hile all three emerging powersfeel eHually frustrated by the 8est"s unwillingnessto yield space in global governance, they also havea shared concern in China"s growing inDuence in

their own individual neighbourhoods. If Indiaworries about China"s rising pro+le in South Asia,*rail worries about China"s growing clout in atinAmerica, and South Africa +nds its inDuence inAfrica receding as more of its neighbours turn toChina.

Thus, both on account of their inability to getthe -L and the $ 0+ve permanent members of the N Security Council1 to raise their stake inglobal governance, and on account of the challengethey face within their own neighbourhood fromChina"s growing economic presence, I*SA have a

substantial, shared, meaningful agenda to chalk outand pursue. The problem is that not many in thethree capitals are paying any attention to theseissues.

GETTING FEDERA/ TRANSFERS RIGT The /ourteenth /inance Commission"srecommendation to increase ta& devolution to >per cent of the shareable pool of ta&es has increasedthe Dow of untied resources 0or resources transferredwithout condition1 to States. %stimates show thatpost the @th commission award, the untied

statutory transfers would be more than L? per centof the aggregate resource transfers from the nionto the States. Although this increase in the share of untied funds is a marked improvement in thestructure of a transfer away from a conditional toan unconditional one, it is time that attention ispaid to reform the transfer system by focussing onnon$/inance Commission transfer to enable States


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to eBectively utilise the enhanced untied +scalspace. This can only be done by reforming thecoverage, content and architecture of the non$/inance Commission transfers and a furtherconsolidation of schemes.

Budget and non%&C transfersA ma6or issue, post *udget >?@$@, is the sharpdecline in allocations to the social sector in the formof various conditional grants to the States. Thisdecline has happened to accommodate a largeincrease in ta& devolution. As per the *udgetestimates, enhanced ta& devolution should resultin an increase in the Dow of untied funds to thetune of 2s.@,G,@? crore and a reduced Dow of grants to the tune of 2s.GL,LF? crore.

This decline in grants has happened in twocategories= in a speci+ed list of schemes where theCentre"s contribution has been reduced, implyinga corresponding increase in contribution by theStates and for a set of schemes where Centralsupport has been withdrawn. Important schemesin the +rst category are the 2ashtriya 3rishi #ikas

:o6ana, the Integrated Child )evelopment Services0IC)S1, Swacch *harat Abhiyaan and allocationfor elementary education under the midday mealschemes and the Sarva Shiksha Abhiyan 0SSA1+nanced by the -ross *udgetary Support 0-*S1.

!a6or schemes delinked from Central support arethe 7awaharlal Nehru National rban 2enewal!ission, the *ackward 2egions -rant /und andNormal Central Assistance.

ost the @th Commission"srecommendation, the reduction in grants to accommodate a large increase in ta&devolution Qof which many are CSS Q is certainly a step in theright direction. 5owever, this reduction in grantsin Huantum without clarity on the design,

architecture and sharing pattern between thenion and States has the following implicationsfor States= a1 reducing the share of contribution of the Centre to CSS has the potential to reduce untied+scal space available from higher ta& devolution asStates have to make a higher contribution to theseschemes nowJ b1 this reduction does notautomatically imply that States are insulated fromthe conditionalities and Mone sie +ts all" CSS


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intervention and the uncertainties associated withCSS fund Dow.

Why restructuring is critical In the last decade, the proliferation of big$ticket

CSS has emerged as the key +scal strategy totransfer grants to States to achieve a certain outcomein a speci+c sector, especially in health, education,agriculture and rural development. Though themoney allocated under CSS has declined, theseschemes, if not reduced in numbers, and, in manycases, consolidated and restructured, may result inStates having to fund these schemes with a highermatching contribution. And, they may have to bearthe same burden of CSS conditionalities, reducing+scal autonomy and the available untied +scalspace.

2estructuring is not only important from theperspective of State +nances. It is also about gettingthe e&penditure priorities right for both the nionand the State governments.

As articulated in the@th commission"s report, ;between >??>$? and>??$@@, revenue e&penditure by the nion-overnment on State ist sub6ects increased froman average of @ per cent to >? per cent, and onConcurrent ist sub6ects from an average of @F per

cent to @L per cent. This implies a reduction ine&penditure, in percentage terms, on nion istsub6ects.

'neof the primary reasons for this is the proliferationof CSS, especially in the social sector and on rightbasedspending. /or better service delivery outcome,these need to change as most of these functions areprimarily in the functional domain of the States.

The nion government should move its focus fromspending on overlapping functional domain tosub6ects that sHuarely fall in the functional domainof the nion, as in the nion ist, and limit itsintervention on the MState ist" and MConcurrent ist"on sub6ects of national priority having aconsideration of e&ternality.


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/inally, this is not to argue that Centralintervention does not have a role to play indevelopment spending. 2ather, such interventionsshould be limited to a few national priorities. Asarticulated in the @th Commission report, thenion government is currently transferring around

F per cent of the shareable pool of ta&es to Statesin the various forms of transfers. The commission"srecommendations have left a +scal space to thetune of around @ per cent of the shareable poolfor the nion government"s intervention on sub6ectsof a national priority in the social and economicservices. This +scal space, as argued in the report,should be used in the framework of ;cooperativefederalism< with the active involvement of Stateson the design, architecture and implementationframework of such schemes to avoid theproliferation of a Mone sie +ts all" CSS, as was the

practice in the past.

S%NSITI#% 2%'2TIN- IN A TI!% '/ CATAST2'5%

A touchstone that determines whether anewspaper is capable of speaking the truth topower is the way it covers its own fraternity andits follies. The media, which is generally vocal inholding others accountable, has a tendency towithhold its punches when it comes to its own.

8henever a newspaper takes an ethical stand onthe role of its peers, pointing out the lapses andusing the same yardstick it uses to measure theperformance of other players Q such asbureaucrats, diplomats, politicians, corporateleaders and legal e&perts Q it enhances the credibility of the public discourse.

A disaster of this magnitude leaves in its waketraumatised families that have lost everything inone fell swoop. %thical 6ournalism must placehumanity above professional urgency. It may be of some help if reporters, especially from the >4Ltelevision channels, get acHuainted with theliterature on disaster reporting. There are more than@? manuals that are speci+cally designed on howto handle disaster in a humane manner. It isimportant that readers or viewers are also awareof some of the best practices by reporters in adisaster situation to evaluate the Huality of

6ournalism oBered to them.


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Key tips The International Center for 7ournalists has asimple but eBective manual, ;)isaster and crisiscoverage


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towards it in India. It has created a positive imagefor India in *angladesh.

India"s decision to opt for internationalarbitration to settle her maritime boundary with*angladesh was a similar gesture of goodwill. It

signi+ed a deliberate, a priori relinHuishment of itsclaims on the disputed waters, nearly G? per centof which have gone to *angladesh. Negotiationscould never have settled this matter since the Indiaproposedmedian line was drawn in a way U takingaccount of the concave con+guration of the coastU that the *angladeshi waters got con+ned to anarrow triangle between India and !yanmar.*y establishing its ability to resolve sensitive,sovereignty$related issues of its land and maritimeboundaries and displacement of peoples, India hassignalled, 6ust prior to !r. !odi"s visit to China,

that the Sino$Indian border may be ripe for a similarsettlement. India"s inability to ratify a @$year old*A, which addressed issues of a lesser magnitudethan the !c!ahon ine, had given reason to Chinato continue to keep on hold the settlement of theboundary dispute with India.India"s land and maritime boundary agreementswith *angladesh also show that intractable issuescan be wrapped up between neighbours within anoverall relationship of growing trust and friendship.It is also instructive for the issue of 7ammu V3ashmir, which can be resolved as a function of

improved India$akistan relations, and not the otherway around, as sought by akistan.

P"o#$e%s:&' A 8orld *ank estimateplaces illegal trade at three$fourths of regular trade.>. Imbalance of trade W highly favoured towards IndiaF. The transaction costs of trade remaine&traordinarily high, with forced transshipment of goods at the border and the absence of coastalshipping. Customs and documentationreHuirements are not up to international standards.India could redress the trade imbalance withgreater facilitation, further reducing non$tariB barriers, and promoting *angladesh"sindustrialisation. All these issues are now receivingattention.

T(e p"o%ise o pa"tne"s(ip


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The three prime areas of economic cooperationand investment between India and *angladesh areenergy, infrastructure, and connectivity.

artnership in energy has been a two$wayprocess. *angladesh facilitated the transportation,

by the riverine route, of the two F??$tonne gasturbines for the alatana power pro6ect in Tripura,along with GG other packages of over$dimensionalcargo Q virtually impossible to carry through theserpentine, single$lane roads of northern *engal,Assam, !eghalaya, and Tripura. Now, @??!8 of power will Dow to *angladesh from alatana.8hen additional hydropower becomes availablefrom *hutan and, later, from India"s northeast,*angladesh will bene+t from these, while wheelingelectricity through its grid for supply to other Indianstates.

India is promoting *angladesh"s energy securityby encouraging investments in power generation.'n the anvil are a @,F>?!8 coal$+red plant in2ampal, and a @F?$kilometre long M/riendshipipeline" from Siliguri for supply of one milliontonnes of diesel annually.ndia could strengthen *angladesh"s short termliHuidity by oBering it a currency swap facilitysimilar to the one provided to Sri anka. /reshcredit commitments will be needed for road,railways, and waterways connectivity pro6ects.*angladesh will reHuire help to ensure navigable

depth for the Inland 8ater rotocol routes.

*angladeshi business and industry will gain fromconnectivity and infrastructure investments, as alsoIndia"s northeast. The linking of Nepal, *hutan,and India"s northeast to *angladeshi ports mighthelp make *angladesh the natural bridge betweenSouth and Southeast Asia.

/'2 A M''3 N'2T58%ST" 'IC: The uneventful visit of the Afghanistan

resident Ashraf -hani to New )elhi last monthhas further strengthened the widespread belief thatIndia is losing strategic inDuence and geopoliticalstanding as far as its northwestern frontier isconcerned, especially Iran and Afghanistan. 7ust ayear ago, during the 3arai presidency, India wasthe ;most favoured nation< in Afghanistan. Today,there is a perceptible change in the new Afghangovernment"s attitude towards India.


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The most important element of the new strategiclandscape in Southern Asia is the ongoingwithdrawal of the nited States from Afghanistanand the resultant power vacuum, as well as thesubseHuent rebalancing of forces in the region.

China has begun the process of +lling the post$American power vacuum, albeit without militaryinvolvement for the moment. The withdrawal bythe .S. and the attendant strategic uncertaintycould also provide a favourable environment forforces like the Taliban and the Islamic State 0IS1 toenhance their inDuence in the region. This clearlyworries 3abul. -iven the American withdrawal andIndia"s unwillingness to involve itself militarily inAfghanistan, !r. -hani is left with no choice butto engage both akistan and China.

It is this that has led to a Durry of activity amongthe three countries. 'n the one hand, China isenhancing its inDuence in the region with theunveiling of its innovative MNew Silk 2oad" strategyand by oBering economic and developmentalassistance to akistan, while on the other *ei6ing isalso increasingly engaged in regional ;conDictmanagement< initiatives by mediating between3abul and the Taliban, and organising trilateralstrategic engagements with Afghanistan andakistan.

!-Pa) "app"oc(e%ent The second signi+cant component is thenewfound warmth between 3abul and Islamabad.Abandoning the trend of public spats, they are nowon a path of cooperation and friendship, or so itseems. Immediately after assuming o(ce, !r. -hanisignalled a desire for reconciliation with Islamabadand 2awalpindi. In his September >?@ ;+ve$circle<foreign policy speech, not only did he place akistanin the +rst circle of countries that are mostimportant to Afghanistan 0with India in the fourthcircle1.

8hile this in itself need not concern New )elhi,Islamabad is deeply suspicious of any cooperationbetween India and Afghanistan. Therefore, theworry in New )elhi that the Af$ak rapprochementcould have ero$sum implications for India isindeed a legitimate one.

The third ma6or driver is the mainstreaming of


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radical Islamist terrorism in the form of the rise of the IS and the resurgence of the Taliban.

E*p$aining t(e non-st"ategy 'ne of the ma6or reasons why India is unableto devise prudent and timely strategies to engage

the northwestern region is due to its obsession withgreat power diplomacy. New )elhi takes greatpride in engaging the great powers of theinternational system and this is often done at thee&pense of engaging its northwesternneighbourhood.

Second, Indian diplomacy seems to be trappedin compulsive bilateralism wherein it is unable tothink beyond bilaterally engaging the neighbours,or the great powers. 8hile there has beenengagement with *ei6ing on a variety of bilateral

issues, India has not been able to 6oin forces withChina and other neighbours in +ghting terror,stabilising Afghanistan, addressing the IS threat oreven mainstreaming Iran.

The third reason is in its unwillingness to havea sustained dialogue with akistan. 'ne way or another, due to geostrategicreasons, akistan playsa crucial role in the Southern Asian subsystem.-iven the absence of a dialogue between the twoadversarial sides, Islamabad will continue to harmIndian interests in the region, be it Afghanistan or

with China.

MORE "ONSTIT,TIONA/ TAN PO/ITI"A/ The tussle between the )elhi Chief !inister,Arvind 3e6riwal and )elhi ieutenant -overnor,Na6eeb 7ung, much in the news, raises severalconstitutional and legal issues on the scope ande&tent of their powers in the National Capital

Territory 0NCT1 of )elhi.

The relevant la's

The laws relevant to understanding the relationbetween the ieutenant -overnor and the Chief !inister in )elhi are Article F>KAA of theConstitution, the -overnment of National Capital

Territory of )elhi Act, @KK@ 0-NCT Act1, the rulesformulated under this Act 0Transaction of *usiness2ules1, and the relevant 6udicial pronouncements.It needs to be said that the precise contours of thesharing of powers between the ieutenant


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-overnor and the )elhi government are a greyarea. :et, a reasonable case may be made to suggestthat the ieutenant -overnor"s discretionary powersdo not e&tend to the appointment of the Chief Secretary without the ;aid and advice< of the Chief !inister and his Council of !inisters. /urther, it

will be argued that the 5ome !inistry noti+cationmay not stand the test of constitutionality, beingultra vires of Article F>KAA of the Constitution.As far as States are concerned, the Chief Secretary is appointed by the Chief !inister andthe !inisters. The reasoning for this can be foundin these landmark Supreme Court 6udgments. %..2oyappa 0@KL1 states that ;The post of Chief Secretary is a highly sensitive postWOChief Secretaryis aP lynchpin in the administration and smoothfunctioning of the administration reHuires that thereshould be complete rapport and understanding

between the Chief Secretary and the Chief !inister.

The underlying premise also is that the State-overnment or the Chief !inister has con+dencethat the appointee will deliver the goods, as it were,and both are administratively Huite compatible witheach other. If there is a loss of con+dence or thecompatibility comes to an endW< These precedentsclarify the rationale that the Chief !inister oughtto have the discretion to appoint Chief Secretariesin the interest of a smooth functioningrepresentative government.

(elhi’s peculiar nature8hile this 6usti+cation for the Chief !inister toappoint the Chief Secretary may hold good forStates, is it the same for )elhi )elhi is a peculiarcase, neither being a State, nor a nion Territory.So, Article >FK, which deals with nion Territories,does not apply to )elhi. Instead, )elhi is governedby Articles >FKAA and >FKA*, introduced by aconstitutional amendment in @KK@. The problemwith the 5ome !inistry noti+cation is that whileit conDates )elhi as a nion Territory to suit itsown interests, at other times, it treats it as a State.

The crucial constitutional provision relevant to theissue is Article >FKAA01 which says= ;There shallbe a Council of !inistersWin the egislativeAssembly, with the Chief !inister at the head toaid and advise the ieutenant -overnor in thee&ercise of his functions in relation to matters withrespect to which the egislative Assembly haspower to make laws, e&cept in so far as he is, by


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or under any law, reHuired to act in his discretion.< Two conclusions can be drawn from reading theprovision= 0a1 the ieutenant -overnor will have totake decisions based only on the ;aid and advice<of the Chief !inister in e&ercise of all matters onwhich the egislative Assembly has power to make

laws. ConseHuently, the egislative Assembly of )elhi has the power to make laws on all mattersin the State ist and the Concurrent ist in the#IIth Schedule of the Constitution, e&cept entriesrelated to public order, police and land. 0See, Article>FKAA0F11J and conclusion 0b1 the ieutenant-overnor can act at his own discretion only whenthere is a speci+c law conferring this discretion onhim. Section @ of -NCT Act deals with thediscretionary powers of the ieutenant -overnor.

There is no such law granting discretion to theieutenant -overnor for making such appointments

currently.*ased on these two conclusions, the Huestion isthis= whether the appointment of the Chief Secretary falls under conclusion 0a1 wherein theieutenant -overnor appoints the Chief Secretaryon the ;aid and advice of OtheP C!FKAA granting special status to )elhi. Thepopulation of )elhi is large, and it is only fair thatthe people deserve a representative governmentserving their interests, similar to other States, e&ceptin matters concerning land, public order and police.-iven such an intention of the lawmakers, for allpractical purposes, from then on, )elhi has actedand functioned like other States. 8hich is why thelanguage used in Article @F0@1 pertaining to Statesreads identical to that of Article >FKAA0@1pertaining to )elhi, while that of the provisionrelating to )elhi reads diBerent from the provisionrelating to all other nion Territories. Therefore,

6ust as in other States where the Supreme Courthas 6usti+ed that the Chief Secretary appointmentsbe made at the discretion of the Chief !inister, in)elhi as well, it is the Chief !inister who musthave the power to appoint the Chief Secretary, by;aiding and advising< the ieutenant -overnor.


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Second, e&ecutive powers run coe&tensively withlegislative powers. /inally, the phrase ;aid andadviceFKAA, has beeninterpreted by the Supreme Court in ShamsherSingh 0@KL1 to mean that the aid and advice of the Council of !inisters and the Chief !inister is

;binding< on the -overnorJ it is not 6ust advisory. Therefore, the following can be reasonablyconcluded based on a 6oint reading of theobservations= /irst, as per Article >FKAA01 read withSection @ of the -NCT Act, the ieutenant-overnor does not have any discretion to appointthe Chief Secretary and other such posts, nor isthere any special law granting him this discretionJSecond, the ieutenant -overnor is bound by the;aid and advice< of the Council of !inisters andthe Chief !inister in all matters that concern theegislative Assembly. Third, for all practical

purposes, the intention of arliament was to treatthe )elhi government as a representativegovernment. It would be disrespecting voters and atravesty to grant autocratic powers to the ieutenant-overnor, an authority which does not have a;democratic legitimacy< in the strict sense. Ademocracy, by design, guarantees that it is the partyvoted into power that represents the people of )elhi.

MO, 1ET3EEN INDIA AND 1ANG/ADES ON 1I/ATERA/"OOPERATION OF ,MAN TRAFFI"2ING

The nion Cabinet, chaired by the rime!inister Narendra !odi, has given its approvalfor signing of a !emorandum of nderstanding0!o1 on prevention of human tra(ckingespecially tra(cking in women and children=rescue, recovery, repatriation and reintegration of victims of human tra(cking on !ay F?, >[email protected] salient features of the )o* are as follo's+

To strengthen cooperation to prevent all formsof the human tra(cking, especially that of women and children and ensure the speedyinvestigation and prosecution of tra(ckers and

organied crime syndicates in either countryJ %numeration of preventive measures that would

be taken to eliminate human tra(cking inwomen and children and in protecting therights of victims of tra(ckingJ and

2epatriation of victims would be done ase&peditiously as possible and the home countrywill undertake the safe and eBectivereintegration of the victims.


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/ET TE E/E"TED R,/EArticle >FKAA, introducedby the Kth amendment, mandates that there shallbe a council of ministers, headed by the C!, to aidand advise the - on matters over which theassembly has the power to make laws. If there is adiBerence of opinion between the - and theministers, the former must refer the matter to thepresident. %vidently, the NCT, though called a T,was conceptualised as a virtual state, minus thethree important sub6ects.

To bolster the Kth amendment, arliamentpassed the -overnment of National Capital

Territory of )elhi Act, @KK@. It lays down provisionsfor setting up a legislative assembly for )elhi, the Huali+cations for its membership,its legislativeduration etc. Section @ of the act speci+es theinstances where the - has discretionary powers./irst, in matters that fall outside the purview of powers conferred on the assembly, but such powersmust be delegated to the - by the president.Second, when he is reHuired by law to perform a

6udicial or semi$6udicial function. Neither appliesto the sub6ect of the present controversy. This fallsunder an act of arliament.nder Section F of the All Indian Services Act,@K@, the Centre, in consultation with the stategovernments concerned and by noti+cation in the

o(cial gaette, can lay down rules to regulate therecruitment and conditions of service of the personsappointed. The All India Administrative ServiceCadre 2ule, @K, is relevant to the present debate.It de+nes ;state< as ;a state speci+ed in the /irstSchedule to the Constitution and includes a T


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e&ecutive power over items in the state list byissuing a noti+cation giving the - absolute powersin the appointment of bureaucrats is misplaced.arliament has already enacted a statute under%ntry L? of the nion list covering the appointmentand posting of IAS o(cers in states or Ts. nder

Article >FKAA, the - has to work on the aid andadvice of the council of ministers, in the e&ercise of functions related to matters in which the state is soauthorised. The dictum laid down in the classic SCdecision in Shamsher Singh must, of course, apply.

"A1INET NOD TO MOTOR PA"T 3IT TREE SAAR"NATIONS

The Cabinet on 7une @?, >?@ approved thesigning of a motor vehicles pact between India andthree other nations of the SAA2C grouping Q

*hutan, *angladesh and Nepal on 7une @, whichwill enable seamless transit of passenger and cargovehicles among these nations. /ollowing the nod,2oad Transport and 5ighways !inister Nitin-adkari will visit *hutan where the pact isscheduled to be signed by transport ministers of the participating nations.

The Cabinet has approved signing of the*angladesh, *hutan, India and Nepal 0**IN1 !otor#ehicle Agreement for the 2egulation of assenger,ersonal and Cargo #ehicular Tra(c amongst**IN. The agreement will be signed at the **IN

Transport !inisters meeting in Thimpu, *hutan.Signing of the **IN pact will promote safe,economical e(cient and environmentally soundroad transport in the sub$region and will help eachcountry in creating an institutional mechanism forregional integration. **IN countries will bebene+ted by mutual cross border movement of passenger and goods for overall economicdevelopment of the region. The people of the four countries will bene+t throughseamless movementof goods and passenger across borders.%ach party will bear its own costs arising from

implementation of this agreement, the statementadded.

/ET4S NOT MISS TE 3OOD'n 7une >F, rime !inister Narendra !odidirected the !inistry of Tribal ABairs 0!oTA1 toensure that all States implement the /orest 2ightsAct 0/2A1 and grant land rights to tribals over the


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ne&t two months. !r. !odi"s announcement iswelcome, but nevertheless surprising, as hisgovernment has come under scathing criticism forremoving community consent clauses for landacHuisition in the ill$conceived land ordinance bill.Nearly >? million people live in and around

forests in India, of which the estimated indigenousAdivasi or tribal population stands at about @??million. /or this population,there cannot be any better news than thegovernment"s willingness to recognise theircustomary rights and undo the historical in6usticethey have faced, as outlined in the /2A.

The directive to achieve this historicaltransformation in the ne&t two months, however,shows a lack of understanding of what the processentails, and the factors that have prevented theproper implementation of the /2A since its passage

in >??.'ne, the process of documenting communities"claims under the /2A is intensive Q rough mapsof community and individual claims are prepareddemocratically by -ram Sabhas. These are thenveri+ed on the ground with annotated evidence,before being submitted to relevant authorities. The-ram Sabha is treated as a public authority underthe /2A, and if the higher authorities under thelaw re6ect its claims, substantive reasons have to beprovided for doing so. This e&haustive process iswhy the o(cial diktat to implement the /2A so

Huickly lacks any understanding about the e&tentof the task and labour involved.Second, the main factor inhibiting the /2A"sfull implementation is the reluctance of the forestbureaucracy to give up control. The forestbureaucracy has misinterpreted the /2A as aninstrument to regularise encroachment. This is seenin its emphasis on recognising individual claimswhile ignoring collective claims Q Community/orest 2esource 0C/21 rights as promised underthe /2A Q by tribal communities. To date, thetotal amount of land where rights have beenrecognised under the /2A is 6ust F.@F millionhectares, mostly under claims for individualoccupancy rights.Collective o'nership

This deliberately narrow interpretation of the/2A is against the letter and spirit of the law, whichseeks to undo historical in6ustices and return theforests to community 6urisdiction. It also contradicts


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the estimates for forest area collectively used bytribal and other forest communities that areprovided by government agencies themselves.

Thus, all forest lands within revenue villageboundaries would be eligible for recognition ascommunity forest resources 0C/21 under the /2A,

and brought under the 6urisdiction of -ram Sabhas.It should be noted that these numbers are highlyconservative, as the data leaves out the States of

7ammu and 3ashmir, !anipur, Arunachalradesh, Nagaland, !ioram and Sikkim, andignores the forests collectively used by communitiesoutside the revenue boundaries of their villages.8hile these facts indicate a remarkably highpotential for recognition of C/2 rights, the actualrecognition of these rights remains tragically low.

The !oTA"s /ebruary >?@ status report indicatesthat the total area reported to be recognised under

C/2 is only LF,??? hectares, less than one$+vehundredth of the C/2 potential in the country.

This does not, however, mean that progresscannot be accelerated.

The government can start by recognising therole played in the /2A"s meagre implementationby the forest bureaucracy"s resistance as well as the acute lack of awareness of/2A"s communityrights provisions in State administrations and forestcommunities. In almost all States, the /orest)epartment has either appropriated or been giveneBective control over the /2A"s rights recognition

process. This has created a situation where theo(cials controlling the implementation of the lawoften have the strongest interest in its nonimplementation,especially the community forestrights provisions, which dilute or challenge thepowers of the forest department. %vidence fromdiBerent States clearly indicates the forestbureaucracy"s eBorts to stall or subvert the C/2provisions of the /2A.

"ONSTIT,TIONA/ "ONVERSATIONS ON ADIVASI RIGTS

%ven L years after Independence, the problemsof Adivasi communities are about access to basicneeds. These include, but are not restricted to,elementary education, community healthcare,sustainable livelihood support, the publicdistribution system, food security, drinking waterand sanitation, debt, and infrastructure. /or them,eHuality of opportunity remains largely unful+lled.In this conte&t, it is important to stress that the


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values of tribal culture are transmitted in a mannerthat protects the right of the bearers of knowledgeto determine the terms of the transmission withoute&ploitation or commodi+cation. Nor can theAdivasis" unhindered access to land and forests,including full access to the commons, especially in

scheduled areas, be understated. Tribalcommunities have, over the decades, witnessed thefragmentation of their habitats and homelands andthe disruption of their cultures through predatorytourism. All this has left them shattered andimpoverished. %ntire communities across Stateshave been dispossessed systematically through stateaction, and have been reduced from owners of resources and well$knit, largely self$su(cientcommunities to wage earners in agriculture andurban agglomerates with uncertain futures. :et,we can scarcely forget that the rights of tribal

communities in India are protected by theConstitution and special legislations.ights enumerated 8hile most of these protections are available togroups named in The Constitution 0Schedule

Tribes1 'rder @K?, there are some tribalcommunities that fall within the categories of Scheduled Castes 0SC1 and 'ther *ackward Classes0'*C1 and some that don"t fall into any of thesecategories. 8ithin the category of Scheduled Tribes0ST1, there are over ?? groups listed of whomroughly L? are part of the sub$classi+cation

articularly #ulnerable Tribal -roups, a smallcluster of groups that include the 7arawas of theAndaman Islands, the Chenchus of Andhraradesh and Telangana, and the *aigas of Chhattisgarh. These groups face an acute crisis of survival, evident in their rapidly dwindlingnumbers. Therefore, they are in need of specialprotection even within the larger ST category,protections in relation to non$tribal communitiesas well as in relation to other tribal communities.Notwithstanding these comple& intersections andoverlaps 0and e&clusions in some instances1, tribalcommunities, especially the STs, are the sub6ect of special constitutional attention.

The right of tribal peoples to developmentthrough pathways that a(rm their autonomy anddignity, as set out in Article >@ and under Schedules# and #I of the Indian Constitution, is often seenas the core of Adivasi rights. And indeed, they are.

The oft$Huoted Samata 6udgment of @KKL, rich in


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its defence of the rights of Adivasi communities totheir homelands, posits an inter$reading of Articles@ 0eHuality1, @ 0non$discrimination1, @ 0eHualityof opportunity1, @L 0abolition of untouchability1,>@ 0life and liberty1, >F 0right against e&ploitation1from the /undamental 2ights chapter of the

Constitution and Articles FG 0securing a 6ust socialorder1, FK 0guiding principles of policy1 and 0promotion of educational and economic interestsof SCs, STs, and other weaker sections1 from the)irective rinciples of State olicy.

The constitutional arguments in the 5igh Courtof Andhra radesh resisting the olavaram damcentred on whether the state could alter 0diminish1the boundaries of a scheduled area withoutpresidential assent. Submergence, in fact, altersboundaries, causes disappearance of villages andvillage institutions, and renders people from these

communities vulnerable through dispossession bydisplacement Q all of which are the sub6ect of special protections for the STs. The largest volumeof litigation in scheduled areas has to do with nontribaloccupation of tribal land and the blatant derogation of land transfer regulation laws./inancial inclusion poses the third ma6or problem=despite policy commitments to +nancial inclusionof vulnerable communities as a measure to lift themout of debt bondage and predatory money lendingand usury, moneylenders continue to thrive in tribalareas.

Article @K 0d1 To move freelythroughout the territory of IndiaJ 0e1 To reside andsettle in any part of the territory of IndiaJ

Clause of Article @K reads as follows= @K 01Nothing in sub clauses 0d1 and 0e1 of the said clauseshall aBect the operation of any e&isting law in sofar as it imposes, or prevent the State from makingany law imposing, reasonable restrictions on thee&ercise of any of the rights conferred by the saidsub clauses either in the interests of the generalpublic or for the protection of the interests of anyScheduled Tribe 0emphasis added1.In other words, an important part of Article @Kprotections have to do speci+cally with protectionof interests of STs 0Clause 1 as distinct from othermarginalised groups through limitations on rightto freedom of movement Osub$cause @0d1P and rightto freedom of residence Osub$clause @0e1P. This, Iwould argue, when read with e&isting protections


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0for instance as set out in Samata or similar cases1oBers a core and e&press fundamental rightprotection to Adivasis 0as distinct from legalRstatutory protection1 from a range of state and nonstateintrusions in scheduled areas as well as fromthe perennial threat of eviction of Adivasis from

their homelands.

3nown popularly as the Samata 6udgment, it nulli+ed all miningleases granted by the State government in the Scheduled areas andasked it to stop all mining operations. 'nly the State !ineral)evelopment Corporation or a cooperative of the tribal people, itruled, could take up mining activity and that too in compliance withthe /orest Conservation Act and the %nvironment rotection Act. Italso recognised the Constitution 0LFrd1 Amendment and theanchayat 0%&tension to Scheduled Areas1 Act, under which gram

sabhas are competent to preserve and safeguard communityresources, and reiterated the right of self$governance of Adivasis.8here similar Acts in other States do not prohibit the grant ofmining leases in the Scheduled areas, a committee of Secretariesand State Cabinet sub$committees should be constituted and adecision taken, the 6udgment said. *efore granting leases, it isobligatory for the State government to obtain the concurrence of theCentre, which would, for this purpose, constitute a sub$committeeconsisting of the rime !inister and the nion !inisters for 8elfareand %nvironment so that the StateXs policy is consistent with that ofthe nation, it said. The 6udgment also noted that at least >? per centof the net pro+ts should be set apart as a permanent fund for theestablishment and provision of basic facilities in the areas of health,education, roads and other public amenities.

SO3ING TE SEEDS OF A DISASTERMCompensatory ABorestation" is a convenientIndian concept that has been in place since @KG?.8henever development pro6ects seek land inside a2eserved /orest or a rotected Area 0A1, such as

a sanctuary or a national park, certain levies areimposed on the pro6ect proponent. This money isto be utilised to plant trees elsewhere, ostensibly tocompensate for the loss of forest.'ver the last @? years, a staggering corpus of 2s.F,??? crore has accrued from such levies in afund called Compensatory ABorestation !anagement lanning Authority 0CA!A1.

TheCentral government now wants to release K? per


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cent of this money to States for carrying outaBorestation pro6ects. 'n the face of it, this mightseem like a progressive step. *ut given that the *illis anchored on a Dawed and unscienti+c premise,it is only likely to provide a M+g leaf" for coveringup the increasing diversion of forests in the name

of development.Threat of fragmentation8hen ill$planned development pro6ects arethrust into the heart of As, the result isfragmentation, that is, the breaking up of largeforest blocks into smaller and more vulnerablepatches. eer$reviewed scienti+c research hasclearly established that fragmentation is one of themost serious threats to long$term biodiversityconservation, causing several devastating impactsJamong other things, it disrupts landscapeconnectivity, aBecting dispersal of animals, and

creates new edges that e&pose forests to e&ploitationand severe degradation. Sadly, instead of addressingthis critical issue, successive governments have beenpursuing the Dawed idea of trying to Mcompensate"for forest loss and fragmentation by raising arti+cialplantations elsewhere.

5ere is 6ust one e&ample of how thecompensatory aBorestation approach ends up not

6ust being a Mgreenwash", but an ecological disasteras well. /rom @KG? to >??, the 3udremukh Iron're Company imited 03I'C1 strip$mined hill

slopes clothed in virgin rainforests in the heart of 3arnataka"s 3udremukh National ark. *esides thehorrendous damage to the fragile ecosystem, over@? million tonnes of tailings Q the waste mud leftover after e&traction of low grade ore Q weredumped into a pristine, @??$metre$deep, forestedvalley. To Mcompensate" for this loss of naturalhabitat, 3I'C went on a massive compensatoryaBorestation spree, planting millions of trees. Theproblem with this was twofold= the trees were nonnativespecies with ero biodiversity valueJ and theywere planted on ad6oining areas of naturalgrassland, which are an e&tremely importantcomponent of the *hadra 2iver"s watershed. Thus,apart from the forested hill slopes and the valleythat were destroyed by mining activities, a thirdnatural habitat, in the form of ecologically importantgrasslands, was destroyed through mindless treeplanting. To add insult to in6ury, governments andpro6ect proponents alike proclaim such travesties


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as achievements towards a M-reen India". The CA/ *ill >?@, if approved in its currentform, would end up repeating such colossalmistakes all over the country. In order to providereal bene+ts, the *ill must be modi+ed to allow ama6or percentage of CA!A funds to be utilised

for consolidating the remaining large blocks of natural old$growth forests.

In 3arnataka, where morethan 2s. @,?? crore have been spent onaBorestation pro6ects over the past F? years, datafrom the /orest Survey of India shows that denseand moderately dense forest cover in the State wentdown by >,GKG sH km between @KKL and >?@@. In!aharashtra, a recent o(cial evaluation of tenyearold plantations 0>??$>?@1 in all @@ forestcircles has shown that L per cent of them have

failed while @F per cent are partially successful andonly @F per cent successful.

There is further 6usti+cation for a review of theCA/ *ill. CA!A is India"s sovereign fund, and isthus the only one available for consolidation of largeforest blocks. None of the international aid agenciesfunding aBorestation pro6ects allows for thisecologically vital activity.'ther than investments to consolidate large2eserved /orest blocks, As, and the creation of wildlife corridors, the other important activity that

needs to be funded through CA!A is naturalrestoration or regeneration of degraded forests. Theapproach must be to +rst identify degraded forest areas with e&istent root stock,and invest only onappropriate protection measures such as trenching,fencing and +re prevention. The degraded forestswill then recover through a natural process at avery nominal cost to the e&cheHuer. /unding forarti+cial plantations should only be considered ine&tremely degraded areas with no e&isting rootstock.

If recast on the basis of soundscience, the CA/ *ill >?@ will form the basis of afar$sighted and genuinely bene+cial strategy toprotect India"s forests. 5owever, given the way itis crafted presently, it will allow 2s. F,??? croreto be sHuandered away on corruption$riddenMaBorestation" pro6ects involving digging pits,buying polythene bags for raising saplings, and


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planting trees that can never become forests.

"IR",MVENTING TE RA.YA SA1A(e,ning a money bill At the centre of this controversy is the moneybill Q a technical term in the Constitution and the5ouse rules referring to a certain class of bills whichcontain ta&ation proposals and proposals relatingto money matters etc. nder Article @@?, a moneybill only contains matters such as imposition,abolition, remission, alteration or regulation of anyta&. It also includes regulations related to borrowingof money or giving guarantee by the -overnmentof IndiaJ the custody of the Consolidated /und of India 0C/I1 or the Contingency /und of India, andpayment of moneys into or withdrawal of moneysfrom such fundsJ and the appropriation of moneysout of the Consolidated /und of India.*esides the above, it includes chargede&penditures like the salary of the resident, #ice$resident, Speaker, 6udges etc.J the receipt of moneyon account of the Consolidated /und or the publicaccount, its custody etc.J and matters incidental toany of these. Article @?K says a money bill can beintroduced only in the ok Sabha. After it is passedby the ok Sabha, the *ill is transmitted to the2a6ya Sabha for its recommendations only. The2a6ya Sabha cannot disapprove the money bill but

can recommend amendments, which the ok Sabhacan re6ect in toto . %ven then, the bill will be deemedto have been passed by both 5ouses.

Thus, the ok Sabha alone has the power toaccept or re6ect money bills. The power to certify abill as a money bill is vested by Article @@? of theConstitution in the Speaker of the ok Sabha,whose decision is +nal. Some 2a6ya Sabha membershave raised concerns about the +nality of the Article. Their uneasiness arises fromthe fact thatthe 2a6ya Sabha can"t Huestion the decision of theSpeaker even when they feel that they have a

strong case for contesting the decision of theSpeaker.-arliamentary conventionIt must be mentioned that in all the countrieswhere the parliamentary system of governmente&ists, the directly elected 5ouse alone has the +nalsay in +nancial matters. This primacy of the people"s5ouse is enshrined in the Indian Constitution. Thesuperiority of the ok Sabha in budgetary sanctions


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is secured in two ways. 'ne, the demands forgrants Q the estimate of e&penditure of individualministries and departments of the government Qare presented before and passed only by the okSabha. Two, the Appropriation *ills, authorisingthe government to withdraw money from the

Consolidated /und of India, being money bills,cannot be disapproved by the 2a6ya Sabha. Thisconstitutional position is well known.*ut here the problem is not the primacy of theok Sabha in money matters. The apprehensionamong the !embers is that the government maybring bills with +nancial provisions and push themthrough as money bills in order to circumvent thesituation in the 2a6ya Sabha. The Constitutionmakes it abundantly clear that money bills shouldcontain only the above mentioned matters andnothing else. If a bill is a combination of any of the

above and some other provisions not incidental tothose matters, it cannot be called a money bill. Sucha bill needs to be passed by both the 5ouses of arliament.At +rst blush, the apprehension of the !embersof the 'pposition seems out of place because theSpeaker of the ok Sabha is reHuired to apply hermind to the true character of the bill ob6ectively.

The Constitution clearly de+nes the money bill andthe Speaker cannot circumvent it. The word ;only<used in article @@? 0@1 strictly limits the scope of amoney bill and rules out any liberal or politically

convenient interpretation of this term.Nevertheless, the possibility of non$money billsbeing certi+ed as money bills and the power of the2a6ya Sabha being curtailed cannot be ruled out. Itis rather incongruous that the Chairman of the2a6ya Sabha Q the #ice$ resident Q is placed inthe position of having to accept the decision of theSpeaker on the money bills issueunHuestioningly.

The Constitution has vested this power in theSpeaker in conformity with the traditions in allparliamentary democracies. Neither the Constitutionnor the 5ouse rules lay down any procedure withregard to certifying a money bill. This situation israther unsatisfactory.

The 2a6ya Sabha is the Council of States andhas played a crucial role in strengthening the Indianfederation. The Constitution has assigned specialroles to this elders" chamber of the Indianarliament. /or e&ample, when the arliamentwants to make a law on an item in the State list,


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it can do so only if the 2a6ya Sabha passes aresolution by a two$thirds ma6ority. Similarly thecreation of an All India Service follows a two$thirdsma6ority resolution in the 2a6ya Sabha. !oreover,the #ice$resident of India, the number two in theorder of precedence, is the Chairman of this 5ouse.

It may be remembered that Article @>> providesimmunity against challenges to the proceedings onlyon the grounds of procedural irregularities. Awrong decision taken under Article @@?0F1 is not aprocedural irregularity and hence does not grantany immunity.

IS DEAT PENA/TY A TERROR DETERRENT5!s the death penalty .usti,ed?nder the Indian enal Code 0IC1, there areseveral oBences which may attract a death penaltyor life imprisonment. These include murder QSection F?>J waging war 0including attempt andabetment1 Q Section @>@, and mutiny Q Section@F>. nder the Terrorist and )isruptive Activities0revention1 Act, @KGL 0TA)A1 0now repealed butin force in @KKF1 and under the revention of

Terrorism Act, >??> 0'TA1 0now repealed1, thedeath sentence could be awarded for terrorist acts.*omb e&plosions and the loss of lives as a resultof terrorist attacks are completely diBerent innature, ob6ective and motivation from a common

murder. In this case, the ob6ective is not to targetsomeone in particular but to destabilise society andto encourage the disintegration of the sovereigntyand security of a nation. Such terrorist attacks areoften state$sponsored Q and are an act of undeclared war./or many years India has faced, and still faces,the most severe threats on account of terrorism.India was regarded as a ;sponge< until the worldtook notice of the evolving nature and threat posedby terrorism after the terror attack on the 8orld

Trade Center on September @@, >??@.

Awarding someone the death penalty for actsof terrorism is Hualitatively diBerent from awardingsomeone the death penalty for having committedother crimes.A criticism levelled by some against the deathsentence having been awarded to :akub reiteratesthe familiar argument that the death penalty assuch should be abolished as it is a violation of human rights and is an inhuman and cruel form


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of punishment.

/o' eective? The death penalty may be well deserved and a 6udge has to make a decision according to the law. The power to commute the death sentence ought

to be e&ercised by the %&ecutive selectively.

There is increasing support for the view thatthe death penalty for terrorists may not only beineBective but also be counterproductive. 8hy

Terrorists, when awarded the death penalty,become martyrs inDuencing many other misguidedyoungsters to espouse a similar cause. !any religiousfanatics believe in reward in the ;after life< andendless pleasures in heaven. Not awarding themthe death penalty would mean depriving them of the ;anticipated rewards in heaven


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‘Us’, ‘them’ and an elusive peace

Manipur has often been the setting for violent agitations, with those behindthem demanding the implementation of an Inner Line Permit (ILP) sstem in

order to define and protect !insiders" from buing up land on the one hand,and from the unregulated entr of !outsiders" on the other# $ll this can betraced to the core % in the agitations of &', &'*+, and &'+, when sectionstargeted the !outsider" monopol in trade# -he agitations, in &'., &''/, andfrom onwards, have been primaril against unregulated immigrants who

bought up land and immovable properties#

-he agitations have been motivated b the situation that has set alarm bells ringing followingunrestrained demographic pressure b !outsiders" and the need for an ILP as it e0ists in $runachalPradesh, Mi1oram and 2agaland# -he ILP is re3uired for ‘other’ Indian citi1ens to enter $runachalPradesh, 2agaland and Mi1oram# -he ob4ective has been to prevent outsiders from buing up land

and owning natural resources in Manipur#

Paper II.docx

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