📰 Quota benefit can’t be availed simultaneously in two States: Supreme Court
Court clarifies on reservation in reorganised States.
•The Supreme Court has ruled that a person belonging to a reserved category is entitled to claim the benefit of reservation in either of the successor States of Bihar or Jharkhand, but cannot claim benefit of the quota simultaneously in both the successor States upon their reorganisation in November, 2000.
•The top court also held that members of the reserved category, who are residents of the successor State of Bihar, while participating in open selection in Jharkhand, shall be treated to be migrants, and they can participate in the general category without claiming the benefit of reservation and vice versa.
•A Bench of Justices U.U. Lalit and Ajay Rastogi decided the “peculiar question” after a resident of Jharkhand, Pankaj Kumar, a member of a Scheduled Caste, filed an appeal against the 2:1 majority High Court order, denying him appointment in the State Civil Service examination of 2007, on the ground that his address proof showed that he was a permanent resident of Patna, Bihar.
•“It is made clear that person is entitled to claim benefit of reservation in either of the successor State of Bihar or State of Jharkhand, but will not be entitled to claim benefit of reservation simultaneously in both the successor States and those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to participate in general category without claiming the benefit of reservation and vice-versa,” the Bench said.
Parents access the legal system most to protect family honour
•Legal proceedings against child marriages are commonly undertaken against elopements whereas forced child marriages often go unpunished, finds a new study.
•The report — “Child Marriage Prosecutions in India” — brought out by Partners for Law in Development (PLD), a Delhi-based legal resource group, analysed 83 high court and district court verdicts in cases relating to child marriage from 2008 and 2017.
•It selected for analysis judgments and orders in which child marriage was specifically mentioned. These included cases filed under the Prohibition of Child Marriages Act, 2006, as well as legal action initiated under other laws in relation to child marriage such as Protection of Children from Sexual Offences Act (POCSO), 2012, and the Indian Penal Code(IPC).
Twice the number
•The study found that legal prosecution of child marriages was twice as much against elopement or self-arranged marriages by girls with such cases accounting for 65% ( 54 out of a total 83 cases) of the total cases studied. Only 30% of the cases were those of arranged child marriages, and a mere 5% were forced child marriages (such as those that involved kidnapping, enticement or forcible marriage by parents).
•An analysis of who initiated the legal proceedings shows that it was primarily the parents of girls who approached the legal system with a complaint. A total of 56 of the 83 cases, or 67.4%, were initiated by parents or relatives. These included cases where parents sought custody of their daughter who had eloped or to prosecute the husband.
States reluctant
•Only 7% of the cases were initiated by a child marriage prohibition officer — the State functionary designated for implementing the law. Another 7% of the cases were filed by a third party, including an NGO, or suo moto action by the court.
•Girls accessed the law on their own the least, with only 3.5% of the cases filed to seek the nullification of their arranged marriage or to initiate criminal legal action against their parents for arranging an underage marriage.
•Further, the punishment for elopement versus forced and arranged child marriages were hugely disproportionate. The former could invite a punishment of 10 years to life imprisonment if convicted for rape under the IPC or a jail of 20 years to a maximum punishment of death under the POCSO Act, whereas the latter under the PCMA comes with no minimum sentence and a maximum sentence of imprisonment for two years and/or a fine. The study terms this “weaponisation of the law to settle family dishonour”.
•That the law is tilted against older adolescents is also borne out by national crime data. In 2019, 525 cases were registered under the PCMA, compared with 6,590 children who were “deemed” to have been kidnapped on account of an elopement or love relationship and 12,724 cases of children who were kidnapped for the purpose of marriage.
•“The unintended harm of the law needs to be corrected. Law reform in this area must aim to shield the young in self-arranged marriages, while activating the frontline workers and child protection system against forced marriages. The empowerment of the girl, recognition of her voice and affirmative action to secure girls at risk with educational and livelihood opportunities must be at the heart of responses to child marriage,” says Madhu Mehra, the lead author of the study and Head, Research and Training, at PLD.
•She adds that the POCSO must be amended to de-criminalise non-coercive consensual sexual relations between peers, by recognising consent under these conditions between 16-18 years.
📰 Arrest is not always a must, says Supreme Court
‘If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person...’
• The Supreme Court has held that merely because law allows arrest does not mean the State can use the power indiscriminately to crush personal liberty.
• “We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made,” a Bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy said.
• A distinction must be made between the existence of the power to arrest and the justification for exercise of it, it noted.
• “If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused,” the court observed in its recent order.
Anticipatory bail plea
•The order was passed in a plea for anticipatory bail filed by businessman Siddharth, represented by senior advocate Pramod Kumar Dubey and advocates Ravi Sharma and Rahul Shyam Bhandari. The Allahabad High Court had rejected his bail application in July.
•The case concerns an FIR registered against him for allegedly entering into a conspiracy and criminal breach of trust involving former ministers and high-ranking officials in relation to a project initiated by the Uttar Pradesh government in 2007 to build parks and museums, including the Ambedkar Samajik Parivartan Asthal, Kashiram Smarak Asthal Gautambudh Nagar Upvan Echo Park and Noida Ambedkar Park. The FIR alleges a loss of ₹ 14,000 crore to the public exchequer.
•Mr. Dubey argued that his client had joined the seven-year-old investigation. There was no need for his custodial interrogation. There was no apprehension that he would abscond or tamper with evidence. The police were in the process of filing a charge sheet.
‘Wrongly interpreted’
•Mr. Dubey said Section 170 of the Code of Criminal Procedure (CrPC) has been wrongly interpreted by the police and trial courts to make arrest of the accused mandatory at the time of filing of the charge sheet. He argued that the word “custody” in Section 170 had been wrongly interpreted as ‘arrest’.
•Agreeing with the senior lawyer, the Supreme Court clarified that “the word ‘custody’ appearing in Section 170 does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the charge sheet”.
•“The trial courts are stated to be insisting on the arrest of an accused as a pre-requisite formality to take the charge sheet on record in view of the provisions of Section 170 of the CrPC. We consider such a course misplaced and contrary to the very intent of Section 170 of the CrPC,” the court laid down the law.
‘If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person...’
•The Supreme Court has held that merely because law allows arrest does not mean the State can use the power indiscriminately to crush personal liberty.
•“We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made,” a Bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy said.
•A distinction must be made between the existence of the power to arrest and the justification for exercise of it, it noted.
•“If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused,” the court observed in its recent order.
Anticipatory bail plea
•The order was passed in a plea for anticipatory bail filed by businessman Siddharth, represented by senior advocate Pramod Kumar Dubey and advocates Ravi Sharma and Rahul Shyam Bhandari. The Allahabad High Court had rejected his bail application in July.
•The case concerns an FIR registered against him for allegedly entering into a conspiracy and criminal breach of trust involving former ministers and high-ranking officials in relation to a project initiated by the Uttar Pradesh government in 2007 to build parks and museums, including the Ambedkar Samajik Parivartan Asthal, Kashiram Smarak Asthal Gautambudh Nagar Upvan Echo Park and Noida Ambedkar Park. The FIR alleges a loss of ₹ 14,000 crore to the public exchequer.
•Mr. Dubey argued that his client had joined the seven-year-old investigation. There was no need for his custodial interrogation. There was no apprehension that he would abscond or tamper with evidence. The police were in the process of filing a charge sheet.
‘Wrongly interpreted’
•Mr. Dubey said Section 170 of the Code of Criminal Procedure (CrPC) has been wrongly interpreted by the police and trial courts to make arrest of the accused mandatory at the time of filing of the charge sheet. He argued that the word “custody” in Section 170 had been wrongly interpreted as ‘arrest’.
•Agreeing with the senior lawyer, the Supreme Court clarified that “the word ‘custody’ appearing in Section 170 does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the charge sheet”.
•“The trial courts are stated to be insisting on the arrest of an accused as a pre-requisite formality to take the charge sheet on record in view of the provisions of Section 170 of the CrPC. We consider such a course misplaced and contrary to the very intent of Section 170 of the CrPC,” the court laid down the law.
📰 Zycov-D, India’s first COVID-19 vaccine for those above 12, gets nod
Drug Controller General grants emergency approval to the Zycov-D, a COVID-19 vaccine developed by Zydus Cadilla.
•The Drug Controller General has granted emergency approval to the Zycov-D, a COVID-19 vaccine developed by the Ahmedabad based Zydus Cadilla group, on Friday, making it the first vaccine in India that can be administered to adults as well as those 12 and above. It's also the only DNA-based vaccine in the world and can be administered without a needle, purportedly minimising chances of reactions.
•Interim results from Phase-III Clinical Trials, in July, in over 28,000 volunteers, showed a primary efficacy of 66.6 % for symptomatic RT-PCR positive cases. "This has been the largest vaccine trial so far in India for COVID-19. This vaccine had already exhibited robust immunogenicity and tolerability and safety profile in the adaptive Phase I/II clinical trials carried out earlier. Both the Phase I/II and Phase III clinical trials have been monitored by an independent Data Safety Monitoring Board (DSMB)," the Department of Biotechnology said in a statement on Friday.
•The vaccine has been developed in partnership with the Department of Biotechnology under the ‘Mission COVID Suraksha', The three-dose vaccine once administered produces the spike protein of the SARS-CoV-2 virus and elicits an immune response. "The plug-and-play technology on which the plasmid DNA platform is based can be easily adapted to deal with mutations in the virus, such as those already occurring," the DBT noted. Renu Swarup, Secretary, DBT told The Hindu that with the approval, the vaccine would be available "very soon" and that stockpiling had already begun.
•In previous statements, the company has said it expects to make 10-12 crore doses annually and five crore by the year-end.
•“We are extremely happy that our efforts to put out a safe, well tolerated and efficacious vaccine to fight COVID-19 has become a reality with ZyCoV-D. To create the world’s first DNA vaccine at such a crucial juncture and despite all the challenges, is a tribute to the Indian research scientists and their spirit of innovation," Pankaj Patel, Chairman, Zydus Group said in a statement.
•This is the fifth vaccine, after Covishield, Covaxin, Sputnik V and Moderna to be approved for use in India. Inspite of nearly 57 crore doses administered since January, the mainstay of India's vaccination programme continue to Covishield and Covaxin, with the former being nearly 90% of the doses administered so far. About a third of adults have been administered atleast one dose and and 10% two doses.
📰 Reboot to reset: On India-U.S. trade ties
With Indo-U.S. trade deal off, it is time India reorients its global economic engagement
•India’s largest trading partner, and one with whom it has a significant trade surplus, the U.S., is no longer interested in securing a bilateral free trade agreement (FTA), as per indications from the Joe Biden administration. An official acknowledgement of this, from Commerce Minister Piyush Goyal, suggests that years of negotiations towards a ‘mini-trade deal’ followed by a full-blown trade pact that Mr. Biden’s predecessor oversaw may well be infructuous now. The Government will now seek to work on market access issues on both sides, he said, adding that lowering of non-tariff barriers, mutual recognition pacts and adopting common quality standards can also help Indian exports in the interim. There is a possibility that even these issues, which include long-festering dissonances over providing access to U.S. agricultural products or easing import duties on automobiles and Bourbons, would have to be discussed afresh. On Friday, the U.S. envoy to India met Mr. Goyal for what he said was a parley on attaining the $500 billion bilateral trade vision of the U.S. President. The trade target, set when Mr. Biden was the Vice-President in the Barack Obama regime, remains unchanged, but the tools for achieving it are no longer clear. India was pulled out of the U.S.’s Generalised System of Preferences (GSP) that granted some tariff relief to its exports by the Trump government in 2019, and hopes of its reinduction through a mini-trade deal now appear bleak. While India was expected to gain from the Sino-U.S. trade wars under the Donald Trump administration, its retaliation to the GSP status revocation with hiked tariffs on U.S. products had led to frictions that perhaps stymied the conclusion of a mini-trade deal before the change at the helm in the White House.
•The U.S.’s no-go stance on the FTA implies ambitions may have to be pared down but also provides an opportunity for India to holistically review its stance on global trade. It is refreshing that Mr. Goyal has signalled a revamped approach towards FTAs and reminded Indian industry there cannot be one-way traffic. This needs to be matched by actions that start unwinding India’s creeping walls of import tariffs. The Atmanirbhar Bharat campaign has further exacerbated that view — as the advent of a protectionist ‘closed market’ project. Strenuous exhortations that the self-reliance drive is one that seeks to integrate with global value chains can only go so far. Trade policy cannot be perpetuated in isolation and, in fact, affects investments too. Having walked out of RCEP, India needs to demonstrate to its potential FTA partners, including the EU and the U.K., with which rivals like Vietnam have already sealed a deal, that it is a viable alternative to China in a post-COVID world. To be a major trading and manufacturing nation, India can ill-afford to keep sending mixed signals.
📰 Faith and marriage: On anti-conversion laws
Dubious legislation cannot be allowed to criminalise inter-faith marriages
•A regressive and patently unconstitutional feature of recent anti-conversion laws enacted by different States is the criminalisation of inter-faith marriages by treating them as a means to convert one of the parties from one religion to another. While anti-conversion laws, euphemistically called in some States as laws on ‘freedom of religion’, have always sought to criminalise conversions obtained through fraud, force or allurement, the recent enactments or amendments have created “conversion by marriage” as one of the illegal forms of conversion. In its interim order protecting parties to inter-religious marriages from needless harassment, the Gujarat HC has made it clear that the “rigours” of the State’s amendments introduced earlier this year will not apply to marriages that do not involve any fraud, force or allurement. So, it has stopped the initiation of criminal proceedings against those who have married across religious faiths, unless there was any of these illegal elements. A Bench has rejected the State government’s attempt to adopt an innocent reading of the provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021, by claiming that inter-faith marriages that did not involve fraud or coercion and leading to conversion would not attract the penal provisions. The argument is obviously contrary to the wording of the amendment, which makes conversion “by marriage” or “by getting a person married” or “by aiding a person to get married” an offence. The court said, “A plain reading of Section 3 would indicate that any conversion on account of marriage is also prohibited.”
•It is regrettable that Hindutva votaries continue to believe in medieval-minded laws aimed at curbing inter-faith marriages. Despite clear Supreme Court rulings that it is no more constitutional to police private lives and beliefs, sections in the polity still believe that inter-religious marriages are aimed at religious conversion, that they have an adverse impact on public order and invariably involve coercion or deceit. It was always clear to the secular minded and legal experts that constitutional courts will not see such marriages as events that impinge on public order, and that making their solemnisation a ground for prosecution under anti-conversion laws was unlikely to be upheld. It is clear that the Gujarat law’s provisions “interfere with the intricacies of marriage” and an individual’s right to choice, thereby infringing Article 21 of the Constitution. The principle that the right to marry a person of one’s choice is integral to Article 21 flows from the verdict in Shafin Jahan vs Asokan. The order stalling criminal action against those entering into a valid inter-faith marriage constitutes a significant judicial pushback against disconcerting attempts by various States to foment communal divides through dubious legislation.
📰 The fall of Kabul, the future of regional geopolitics
The post-American power vacuum in the region will aid China and shape India’s strategic choices and behaviour
•The fall of Kabul in the wake of the American withdrawal from Afghanistan will prove to be a defining moment for the region and the future shape of its geopolitics; it would be as defining, if not more, as the Soviet intervention in 1979 and the American one in 2001. While a lot depends on the Taliban’s actual conduct both domestically as well as on the southern and western Asian geopolitical chessboard in the months ahead, the Taliban are likely to continue as a ‘useful villain’ in the unfolding great power competition. For New Delhi, the fall of Kabul is a moment of reckoning and it must rethink its regional strategies and options. Unfortunately, of the latter, it does not have many.
A vacuum
•What is most disconcerting is the regional power vacuum in the Eurasian heartland created by the haphazard manner in which the United States withdrew from Afghanistan and its potential knock-on effects. An axis of regional powers such as China, Pakistan, Russia, and the Taliban, have already started filling this power vacuum, shaping, thereby, the contours of the region’s geopolitics based on their individual and common interests. Iran might also jump on this opportunistic bandwagon under the Chinese leadership.
•What is abundantly clear is that each of these countries harbour deep anti-American feelings in varying degrees which will further shrink the American influence in the Eurasian heartland. While it is too early to determine whether what these countries have on their hands is an opportunity or a ticking bomb, the U.S., as a direct consequence of the formation of this axis, might decide to explore new ways of working with them to stabilise the region, if it desires to do so, and remain relevant there. If indeed that happens, could it result in a potential softening of the American rhetoric against China, Pakistan, Russia and perhaps even Iran? More so, what would that mean for India? While a healthy conversation among the great powers — the U.S., China and Russia — on global and regional challenges is a good sign, India is neither a great power nor present at the table. New Delhi must ensure that it does not become a casualty on the south-western Asian geopolitical chessboard.
Advantage China; extremism
•The post-American power vacuum in the region will be primarily advantageous to China and its grand strategic plans for the region. Beijing will further strengthen its efforts to bring every country in the region, except India, on the Chinese Belt and Road Initiative bandwagon, thereby altering the geopolitical and geoeconomic foundations of the region. More so, the much-feared Chinese encirclement of India will become ever more pronounced. Having been further emboldened by the U.S.’s withdrawal and in stamping its writ on the region, Beijing is likely to become less accommodative towards India including on the Line of Actual Control. Even in trade, given the sorry state of the post-COVID-19 Indian economy, India needs trade with China more than the other way round. Unless New Delhi can find ways of ensuring a rapprochement with China, it must expect Beijing to challenge India on occasion, and be prepared for it.
•The bigger challenge for India though would be a near-certain increase in terrorism and extremism in the region. The U.S. presence in Afghanistan, international pressure on the Taliban and Financial Action Task Force worries in Pakistan had a relatively moderating effect on the region’s terror ecosystem. With the Taliban now back in Kabul, things are bound to change. The visuals of the Taliban releasing terrorists from Afghan jails would send a powerful message to their fellow travellers, handlers, and sympathisers in the region.
•While the neighbouring countries are also worried about terrorism emanating from Afghanistan, the reality is that they are busy making their own private deals with the Taliban to not host terror organisations targeting them. There is little appetite for a regional approach to curbing terrorism from a Taliban-led Afghanistan. This enables the Taliban to engage in a selective treatment towards terror outfits present there or they have relations with. Moreover, given that the international community may have no choice but to recognise the Taliban regime — UN Security Council members such as China and Russia have already indicated their intent to do so — would also mean that the Taliban would hold more power in a bargain on the terror question. Sanctions are unlikely to deter an outfit that does not need to bother about the next election.
•It is unlikely that the Taliban will proactively export terror to other countries unless of course for tactical purposes by, say for instance, Pakistan against India. The real worry, however, is the inspiration that disgruntled elements in the region will draw from the Taliban’s victory against the world’s sole superpower.
•To that extent, the triumphalism in Pakistan over the Taliban’s victory in Afghanistan could eventually become counterproductive for Pakistan itself. Whether Pakistan Prime Minister Imran Khan refers to them as a force that has ‘unshackled the chains of slavery’ or the country’s deep state considers them as a strategic asset, the reality is that many anti-Pakistan terror organisations would be emboldened as well.
Impact on regional interests
•The return of the Taliban to Kabul has effectively laid India’s ‘mission Central Asia’ to rest. If New Delhi could not find its way to Central Asia with encouraging partners such as Iran and the Hamid Karzai/Ashraf Ghani governments, the possibility of New Delhi doing so now is next to nil. India’s diplomatic and civilian presence as well as its civilian investments will now be at the mercy of the Taliban, and to some extent Pakistan. If there is a concerted effort by China, Pakistan and the Taliban to erase the Indian presence from Afghanistan, there is little India can do about it. Had New Delhi, as I had argued earlier, cultivated deeper relations (which by no means would have meant recognising the outfit) with the Taliban, Indian interests would have been more secure in a post-American Afghanistan. New Delhi’s lack of strategic foresight will prove to be costly.
•What is perhaps not yet understood is how the rise of the anti-America axis (China, Russia, Iran, Pakistan and a Taliban-led Afghanistan) and anti-American sentiments in the region would impact India’s regional interests given that it has become closer to the U.S. than ever before in its history. We have to wait and see what this mismatch between the region’s mood and India’s strategic choices would mean for the country. There is little doubt that because of these developments, India’s regional ambitions will take a major hit in the months and years ahead.
•The fall of Kabul and the consequent knock-on effects in the region will have several potential implications for India’s foreign policy and its strategic choices and behaviour. For one, given the little physical access India has to its north-western landmass, its focus is bound to shift more to the Indo-Pacific even though a maritime grand strategy may not necessarily be an answer to its continental challenges. Second, New Delhi might also seek to shed the arrogance it displayed towards its smaller neighbours during Modi 1.0 and cultivate friendly relations with them. Myanmar is a case in point. India has already indicated that it would not challenge the junta on the coup and its widespread human rights violations. This policy is likely to continue even if the Joe Biden administration seeks New Delhi’s help in turning up the heat on Myanmar’s generals. The last thing New Delhi needs now is an angry neighbour rushing to China.
India-Pakistan ties
•Third, the developments in Afghanistan could nudge New Delhi to seek stability, if not peace, with Pakistan. While there is little desire in New Delhi today to reopen a broad-based dialogue process with Pakistan, even a ‘cold peace’ would be in India’s interest. For Pakistan too, such a ‘cold peace’ will help it to focus its energies on consolidating its interests and gains in Afghanistan. As a result, both sides might refrain from indulging in competitive risk-taking unless something dramatic happens which is always a possibility between the two rivals. That said, stability between India and Pakistan depends a great deal on how politics in Kashmir plays out, and whether New Delhi is able to pacify the aggrieved sections in the Valley.
•The lesson for India in the wake of these developments is clear: It will have to fight its own battles. So it must make enemies wisely, choose friends carefully, rekindle flickering friendships, and make peace while it can.
