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The likely implications of right to privacy verdict on policy and citizen’s rights are:

AADHAR: A seperate 5 judges bench is hearing pleas related to AADHAR and whether or not it infringes upon an individual’s privacy. This bench will now have to ensure that the AADHAR Act stands the touchstone of ‘compelling state interest’ as passed in the current ruling.(Just. K S Puttaswamy vs Union of India).

 Beef Ban: The verdict observed that an individual’s choice of food is protected under the Right to Privacy. The Government’s recent amendment that banned sale of livestock for slaughter will have to be modified accordingly.(State of Maharastra vs Shaikh Zahid Mukhtar).

Data Protection : The archaic IT Act, 2000 is not adequate protection for an individual’s Right to Privacy. The bench nudged the Government to introduce suitable legislation in this regard.

LGBTQ rights: The minority judgement in Naz foundation was implicitly reversed when an individual’s sexual orientation and choices were found to be part of the Right to Privacy. (Suresh Kumar kaushal vs Naz Foundation)

Whats App Case: Data sharing between Whatsapp and facebook is under judicial scrutiny. The Right to Privacy, now a FR, will have a bearing on this case as well.(Karmanya Singh Sareen vs Union of India)

The ruling is monumental as it recognises privacy as an integral part of our society and in identifying it as a ‘natural right’ the Court has paved the way for wider reform.

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 Benefits of the projects to India are as below:

  • TAPI Project will provide an alternative supply source of gas with dependable reserves at competitive price leading to enhanced energy security.
  • It will further diversify the fuel basket to the benefit of Indian economy as it would be used mainly in power, fertilizer and city gas sectors.
  • The project is expected to bring peace and stability in the region because of cooperation among regional countries and reliance on each other for meeting energy needs.
  • The strategic significance of the project is huge. Once completed, TAPI can become a game changer in regional geopolitics and regional economic integration.
  • It will reopen a historic route that reconnects South Asia to Central Asia, in the way it was before the British Empire sealed it off.
  • Natural gas is environment friendly thus, would help India reduce its Carbon footprint and achieve its INDCs.
  • This will create investment opportunity in Punjab, Rajasthan and Gujrat region, which will create employment.

 

However there are below challenges to The Project :

  • Security remains the big challenge as it passes through Afghanistan and Pakistan.
  • Funding of the project is partly linked to the security issue. In fact it appears that in the initial stage some international companies such as Unocol, Delta, which had showed their interest to participate in the project, withdrew mainly due to security reasons.
  • Challenge is to complete it on time as EAST-WEST domestic pipeline took Turkmenistan 7 Years to build thus building it by 2019 seems bit over optimistic.
  • Turkmenistan proposes to export 90 million metric standard cubic metres (mmscd) of gas through the TAPI over 30 years, much depends upon the intergovernmental agreement on a long  term basis.
  • Under conditions of sharp decline in global energy prices during the last over a year, the Turkmen economy is already facing a major financial crunch being over-dependent on income from energy export-earning petrodollars. Hence it will be a challenge for Turkmenistan to bear the cost of this project which is near about $8.5 billion(85% of the project).

 

But through the smart leadership of India, Turkmenistan and Asian Development bank this peace project can be realised.

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Achievement :

Rural sanitation coverage having gone up from 39% to 67% in three years.

Use of media and campaigns like “Darwaza Bandh” have led to behaviour change and public awareness of the need for sanitation.

Making functional toilets a compulsory qualification for contesting panchayat elections in Haryana and Rajasthan shows the determination to achieve the dream.

Five states so far have declared ODF by August,2017.

 

Challenges:

While Swachh Bharat Mission-Gramin guidelines clearly envisage a yearly, country-wide, independent third-party assessment of the sanitation status of rural areas, there has been no independent monitoring so far.

Gram panchayats have self-declared 193,081 villages to be open-defecation free, but 53.9% of these have not been verified

As of 2016, 36.7% of rural households and 70.3% of urban households – 48.4% of households overall – used improved sanitation facility, data from the National Family Health Survey 4, which was conducted between January 2015 and December 2016, shows. A majority, 51.6%, did not.“Programmes must concentrate on behaviour change and promoting latrine use, rather than building latrines,”

Since the focus of Swachh Bharat Mission-Gramin is on behaviour change, the guidelines require that 8% of the funds be allocated for information, education and communication activities. Target, which is not achieved  by the government.

 

Given the progress made so far, the goal is definitely achievable. But achieving ODF is the collective responsibility of the entire nation, not just the government.

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Many have advocated the regulation by arguing that the problem should be tackled at the individual level through de-addiction and counseling, and states should not impose a blanket bans. They promptly write away support for prohibition as a gimmick to woo the women vote bank without bothering to ask why women demand prohibition in the first place.

State government dislike any interference in the assured, ever-increasing sale of liquor partly because of the revenue that it brings, and even more because of the close linkage between liquor and politics. Big politicians in the state either own breweries or are closely linked to one. Licenses are handed out to party karyakartas, many of whom get tickets as well. There are no population norms or area norms to restrict the issue of licenses — tiny hamlets of populations less than 500 persons can land up with four liquor shops and bars. The bottomline — politicians whose political and/or business interests are served through increase in liquor sales would rather use their power to increase such sales rather than think about regulation.

In this situation, the very talk of self-care, counseling and de-addiction as alternatives to prohibition ends up depoliticising the issue and directly helps the liquor lobby’s agenda. Regulationists add to the cacophony that asks women and families to “handle” their drunken men and resolve their personal health issues rather than demand any kind of accountability regarding the over-supply of alcohol in their communities.

Regulationists fear that banning good legal liquor will drive people towards the obnoxious illegal hooch. However, as the hooch tragedy of Mumbai which killed more than a hundred people shows, hooch and licensed liquor thrive side by side. In fact, licensed liquor is sold illegally as much as hooch and kills just as many people. The legal/illegal binary is blurred as licensed liquor shops set up well-knit networks to smuggle liquor outside their premises in blatant contravention of the law.

The messy process for closing liquor shops in rural areas goes roughly as follows: First, not less than 25 per cent of total women electorates in the gram sabha have to apply to the district collector to close the shop, against which the district collector seeks a preliminary report from the excise department. If the report is positive, the collector informs the excise department and block-level officials either to conduct a women’s gram sabha where women can show their preference through a show of hands or a secret ballot. The date for the gram sabha is announced 15 days in advance and women have to face violent opposition during this period. The license holder and his henchmen do everything in their power to prevent women from reaching the venue of the gram sabha. Even if the women succeed in getting the required numbers in the gram sabha/ballot and the district collector orders the closure of the shop, the farce of appeals starts almost immediately. The license-holder invariably obtains a a stay order from the excise commissioner or minister and the shop reopens almost as soon as it closes down. Even a failed appeal petition merely means that the shop in that particular village is closed and the license is used to open a shop in another village and the circle starts once more. The very law is structured to ensure that shops do not close, that smuggling is not checked and the supply of liquor is never regulated.

 

Therefore, if the politician-business-criminal triad can come together to protect their vested interests, why should the women not form a vote bank to break this nexus? Liquor is not a moral issue but a political one and therefore, more power to the women of Bihar who have shown the way, and hopefully, more politicians will take the cue from Bihar, such as Tamilnadu.

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India is willing to join the NSG now, today if possible. It has all the elements in place for membership. As the 48-member NSG works by consensus, not majority, India is reaching out to every possible country, much like the push at the UNGA for reforms.

Why NSG?

  • Membership of the NSG creates a climate of predictability with regard to rules for nuclear commerce with India, giving both Indian and foreign companies the confidence to commit the resources that will be needed for the expansion of nuclear power in India. India being a price-sensitive energy market, such an outcome also helps keep the cost of nuclear power within a reasonable band by lowering the risk premium.
  • Access to technology for a range of uses from medicine to building nuclear power plants for India from the NSG which is essentially a traders’ cartel. India has its own indigenously developed technology but to get its hands on state of the art technology that countries within the NSG possess, it has to become part of the group.
  • With access to latest technology, India can commercialize the production of nuclear power equipment. This, in turn will boost innovation and high tech manufacturing in India and can be leveraged for economic and strategic benefits. For example, India has signed a civil nuclear energy co-operation pact with Sri Lanka. Currently,  this entails training people in peaceful uses of nuclear energy, including use of radioisotopes, nuclear safety, radiation safety, nuclear security, radioactive waste management and nuclear and radiological disaster mitigation.
  • Having the ability to offer its own nuclear power plants to the world means spawning of an entire nuclear industry and related technology development. This could give the Make in India programme a big boost.
  • With India committed to reducing dependence on fossil fuels and ensuring that 40% of its energy is sourced from renewable and clean sources, there is a pressing need to scale up nuclear power production. This can only happen if India gains access to the NSG. Even if India today can buy power plants from the global market thanks to the one time NSG waiver in 2008, there are still many types of technologies India can be denied as it is outside the NSG.

 

On the surface, India appears to have fulfilled the commitments it agreed to in exchange for the deal that ended the nuclear trade prohibition.

  • It officially implemented a separation plan, which placed 14 civilian nuclear power reactors under IAEA safeguards, leaving 8 military reactors outside of safeguards,
  • It has sustained its unilateral halt on testing nuclear explosives and,
  • In June 2014, India ratified a protocol that expanded the IAEA’s access to its nuclear sites.

Though U.S. has argued that despite its status outside the NPT, India is sufficiently like-minded regarding non-proliferation to merit membership. Some sceptics, such as Switzerland, might be amenable to this argument if India demonstrated support for non-proliferation through concrete actions. Others, such as Austria, Ireland or New Zealand,may remain opposed on principle unless India joins the NPT, which is extremely unlikely as this would require Delhi to disarm. China has also opposed India’s bid to get NSG membership on the ground that it was yet to sign the NPT.

But India defends its stance by saying that NSG members have to respect safeguards and export controls, nuclear supplies have to be in accordance with the NSG Guidelines. The NSG is an ad hoc export control regime and France, which was not an NPT member for some time, was a member of the NSG since it respected NSG’s objectives. Thus there is no need for NPT as per-requisite for India,s membership in NSG.

 As an important global partner for the United States and a leader in Asia, India’s half-in-half-out nuclear status should not remain permanently unresolved. With the US once again openly endorsing the Indian membership to the NSG in recent, India has begun preparations for the NSG plenary, scheduled to be held in Korea in June.

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India will get the right to tax capital gains on investments channelled through Mauritius under an amended tax treaty it signed with the Mauritius. The amendment to the 1983 India-Mauritius treaty, which will come into force on 1 April 2017, will also apply to the India-Singapore treaty, shutting two lucrative investment routes preferred by foreign investors. The India-Singapore treaty links the capital gains tax regime to that provided in the India-Mauritius treaty. Around 50% of foreign direct investment into India comes through Mauritius and Singapore, according to Indian government data. Some 34% of it is channelled through Mauritius and 16% through Singapore.

In addition, the amended India-Mauritius double taxation avoidance treaty has also provided for a limitation of benefit clause that will ensure that only genuine Mauritius-based companies get the benefit of the bilateral tax treaty. Only those Mauritius-based companies that have a total expenditure of more than Rs.27 lakh in the preceding 12 months will be able to benefit from the tax treaty. Treaty has also provided a two-year transitionary phase wherein the capital gains will be taxed at 50% of the existing tax rate; the full domestic tax rate will be applicable from 2019-20, provided the limitation of benefit clauses have been adhered to.

Under the earlier bilateral agreement between India and Mauritius, capital gains from sale of securities have been taxable only in Mauritius, where the levy is close to zero.

One big positive is that there will be no retroactive impact on any investment made till 1 April 2017.The changes in the treaty should be seen in the light of India’s commitment to base erosion and profit shifting and the impending general anti-avoidance rules that will come into effect on 1 April 2017.

How we got Mauritius to agree?

  • India’s determination to implement GAAR from 1 April,2017,
  • Global pressure built up after panama papers and so many other tax heaven in which the global community is against such arrangements, wherein companies get away with double non taxation, and
  • The urgency the government has put on this matter. Negotiation started back from 1996 and pursued until now.

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Under sections 499 and 500 of the Indian Penal Code, defamation is a criminal offence. Defamatory acts can include “words either spoken or intended to be read”, signs or visible representations, which are published or put up in the public domain. The offence is punishable with up to two years imprisonment, a fine or both.

It is true that ‘defamation’ is one of the reasonable restrictions to free speech envisaged in the Constitution, but this is not enough to justify retaining its criminal component. Article 19(2) of the Constitution permits only “reasonable” restrictions upon the freedom of speech. For a law to be reasonable, it must demonstrate a degree of proportionality between the restriction, and the goal that is sought to be achieved. Criminal defamation fails the proportionality test, in general terms, as well as in the specific legal regime set up by Section 499 of the Indian Penal Code.

In general, criminal defamation is disproportionate because it uses the criminal law to prosecute a wrong that is purely private in nature. A private wrong is one that is purely between the offender and her victim, and has no implications for the society at large. For example, if I fail to control my dog, and it bites you, then you may sue me for compensation in a civil court. Society, the state, and the criminal law have nothing to do with it. However, if I murder a person, then it is not just about one individual taking the life of another, but has ramifications for public peace, order and security. This is why murder is a criminal offence, involves a term in jail, and is prosecuted by the state.

When defamation was first criminalised in medieval England, it had a public purpose. People vindicated insults to their honour by fighting it out in a duel. It was to suppress this kind of self-help regime, and assure people that they did not need to ventilate their grievances with swords and pistols, that defamation was criminalised. But now things have changed.

Many countries, including neighbouring Sri Lanka, have decriminalised defamation, which should be a civil offence alone. The court has unfortunately accepted the self-serving argument by the Centre that criminal defamation does not have a chilling, inhibiting effect on the freedom of expression. In the Indian context, criminal defamation is not generally a dispute between two individuals. It is invariably a shield for public servants, political leaders, corporations and institutions against critical scrutiny as well as questions from the media and citizens.

Subramanian Swamy vs Union of India is a depressing moment for free speech lawyers and activists. It is also (yet another) depressing moment for civil rights lawyers and activists, since it marks a continuing trend – that arguably began with Koushal vs Naz regarding the criminalisation of homosexuality – where two-judge benches decide important civil rights cases. The challenge to the validity of Section 499 and 500 of the IPC was undoubtedly the biggest free speech issue to have arisen in recent times. The two-judge Bench could have referred the matter to a Constitution Bench(a bench of at least five judges).

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