Current Affairs 27 November
Article 370The Supreme Court has refused to entertain a fresh petition on Article 370, which gives special autonomous status to Jammu and Kashmir, and said that the issues raised in it were already part of the pending pleas.
What was the plea all about?
The petition sought a declaration that Article 370 of the Constitution had lapsed with the dissolution of constituent assembly of Jammu and Kashmir on January 26, 1957 and it cannot be treated as mandatory for exercise of powers of the President.
The plea has also sought that the Constitution of Jammu and Kashmir be declared as “arbitrary, unconstitutional and void”, claiming that it was against the supremacy of the Indian Constitution and contrary to the dictum of “One Nation, One Constitution, One National Anthem and One National Flag”.
It has sought declaring as arbitrary some provisions of the Jammu and Kashmir Constitution, which deals with permanent residency and flag of the valley among other issues, for being violative of the Preamble and the Indian Constitution.
The petition has said that continuance of two parallel constitutions, one for the Centre and other for the state of Jammu and Kashmir, “reeks of a weird dichotomy” as most of the provisions of the Indian Constitution has already been extended to the state.
It has alleged that due to vote bank politics, successive governments did nothing to repeal Article 370 and Constitution of Jammu and Kashmir was adopted much after the Indian Constitution came into force. It also added that the instrument of accession of October 26, 1947 does not talk about separate Constitution or constituent assembly for the state.
What is Article 370?
Article 370 of the Indian Constitution is a ‘temporary provision’ which grants special autonomous status to Jammu & Kashmir.
Under Part XXI of the Constitution of India, which deals with “Temporary, Transitional and Special provisions”, the state of Jammu & Kashmir has been accorded special status under Article 370.
All the provisions of the Constitution which are applicable to other states are not applicable to J&K.
Important provisions under the article:
According to this article, except for defence, foreign affairs, finance and communications, Parliament needs the state government’s concurrence for applying all other laws. Thus the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians.
Indian citizens from other states cannot purchase land or property in Jammu & Kashmir.
Under Article 370, the Centre has no power to declare financial emergency under Article 360 in the state. It can declare emergency in the state only in case of war or external aggression. The Union government can therefore not declare emergency on grounds of internal disturbance or imminent danger unless it is made at the request or with the concurrence of the state government.
Under Article 370, the Indian Parliament cannot increase or reduce the borders of the state.
The Jurisdiction of the Parliament of India in relation to Jammu and Kashmir is confined to the matters enumerated in the Union List, and also the concurrent list. There is no State list for the State of Jammu and Kashmir.
At the same time, while in relation to the other States, the residuary power of legislation belongs to Parliament, in the case of Jammu and Kashmir, the residuary powers belong to the Legislature of the State, except certain matters to which Parliament has exclusive powers such as preventing the activities relating to cession or secession, or disrupting the sovereignty or integrity of India.
The power to make laws related to preventive detention in Jammu and Kashmir belong to the Legislature of J & K and not the Indian Parliament. Thus, no preventive detention law made in India extends to Jammu & Kashmir.
Part IV (Directive Principles of the State Policy) and Part IVA (Fundamental Duties) of the Constitution are not applicable to J&K.
Sources: the hindu.
Mains Question: Critically comment on the history of Article 370 of the Indian Constitution, its implications and relevance for the Union of India.
What to study?
Static Part: Key features of Article 370 and related facts.
Dynamic and Current: Arguments in favour and against the removal of Article 370, what is the right move and can an amendment solve the issue?
Minimum Wages Act for domestic workersA petition has been filed in the Supreme Court seeking its intervention to bring dignity to “India’s invisible workforce in the informal sector” — the domestic workers.
The petition asked the Supreme Court to lay down guidelines to protect the workers’ rights.
The petition sought the recognition of domestic work under the Minimum Wages Act, 1948.
Their work hours should be reduced to eight a day and they should be given a mandatory weekly off as a basic right under Article 21.
Need for guidelines:
Indian homes have witnessed a 120% increase in domestic workers in the decade post liberalisation. While the figure was 7,40,000 in 1991, it has increased to 16.6 lakh in 2001.
However, latent classism and lack of education make domestic workers prone to violence and abuse at the hands of their employers and placement agencies.
Worsening their vulnerabilities are the absence of proper documentation, which also increases their reliance on employers to access social security benefits.
As employment is largely through word of mouth or personal referrals, employment contracts are rarely negotiated, leaving the terms of employment to the whims of the employer.
Other issues include- Major incidences of violence (physical and sexual) by employers and the lack of redressal machinery for workers in this rapidly developing domestic services industry.
Who is a domestic worker?
A domestic worker is a person who is involved in domestic work like cleaning, washing, cooking etc. He/she plays an important role in the wellbeing of the family but are often neglected and abused by the members of family and the society.
If the domestic workers are taken as assets & human resource, their standard of living will increase if minimum wage is fixed. It is also important to create awareness about the significant role played by the domestic workers in the wellbeing of the members of family and society as a whole, thereby imparting behavioural change.
Backgrounder- International Labour Organisation’s Convention 189 on Decent Work for Domestic Workers:
The ILO convention 189 on domestic workers mainly aims to provide domestic worker a decent working condition with daily and weekly (at least 24 h) rest hours, entitlement to minimum wage, to choose the place where they live and spend their leave and protective measures against violence etc.
Why India has not ratified the convention?
Daily household work is not considered as an economic activity in Indian society.
Lack of education, awareness and domestic worker unions among domestic workers which are mainly women centric.
Labour legislation comes under state government.
The national laws and practices are not fully into conformity with the provisions of the Convention.
One of the clauses of convention mentions “written contracts”. Chances of misuse as many domestic workers are illiterate.
Fear of misuse of unionisation: one of the clauses says “freedom of association and the effective recognition of the right to collective bargaining”.
What to study?
Static Part: Key features of the proposed National Policy on Domestic Workers, International Labour Organisation’s Convention 189 on Decent Work for Domestic Workers.
Dynamic and Current: Need for a policy and guidelines on this, vulnerability and challenges faced by domestic workers, international experience.
Prevention of Corruption ActThe Supreme Court has ordered the government to respond to a petition challenging two amendments to the Prevention of Corruption Act.
The amendments were:
The introduction of S. 17 A (1) by which prior permission for investigation of corruption offences was required from the government.
The removal of S. 13 (1) (d) (ii) (criminal misconduct) from the Act. It had earlier made it an offence for a public servant to abuse his position to give pecuniary or other advantage to a third party.
Highlights of the Prevention of Corruption (Amendment) Bill, 2018:
Punishment for bribe-taking enhanced: Minimum punishment of 3 yrs, extendable up to 7 yrs with fine; from the earlier 6 months, with extension up to 3 yrs.
‘Undue Advantage’ expanded: The earlier limited definition of “undue advantage” expanded to now include “anything other than legal remuneration”.
Gifts criminalised: Gifts received for established undue advantage/mala-fide motive are now considered an act of corruption.
Collusive bribe-givers criminalised: For the first time, the giving of bribe has now been made a direct offence on par with taking of bribe. At the same time, protection has been built-in against coercive bribery, as long as the victim comes forward within 7 days.
Corporate bribery criminalised: Superiors to be held if employee/agent has bribed with their approval, for advancement of the organisation’s interests.
Immediate forfeiture: Law enforcement empowered for immediate attachment & forfeiture of illegal property of a public servant, invoking provisions of the Prevention of Money Laundering Act (PMLA).
Timely trial mandated: To conclude the investigation and trial within 2 yrs, extendable up to 4 yrs.
What to study?
Static Part: Proposed amendments to the Prevention of Corruption Act.
Dynamic and Current: Need for Amendments, concerns associated and what needs to be done?
Regional Comprehensive Economic Partnership (RCEP)With just about 40% of the agenda items having been resolved, there is still a long way to go before the Regional Comprehensive Economic Partnership (RCEP) talks are concluded. It was agreed during the recently-concluded Singapore Ministerial meeting that the deadline for an agreement be shifted to 2019.
Outcomes of the Singapore Ministerial Meeting:
India had scored big diplomatic points at the Singapore meeting by getting the countries gathered to omit the phrase ‘significant conclusions’ from the leaders’ statements. Some major economies such as China and Japan felt that the phrasing should be that “substantial conclusions” had been achieved. India strongly opposed this.
Why India opposed?
India discovered that in some countries’ trade parlance, ‘substantial conclusions’ is a legal terminology. Adopting the term would have implied that discussions on market access were over, and that those countries would have to disclose the discussions to their Parliaments, and to their public. This has serious implications because only five out of 16 chapters had been concluded, and after the meeting in Singapore only seven had been concluded. None of the 7 chapters settled had to do with market access, discussions on which would have been seriously jeopardised.
After India pointed this out, several other countries such as Philippines, Indonesia, Malaysia, Vietnam, and Australia also took up the issue and supported India’s position on the matter.
What you need to know about RCEP?
RCEP is proposed between the ten member states of the Association of Southeast Asian Nations (ASEAN) (Brunei, Burma (Myanmar), Cambodia, Indonesia, Laos, Malaysia, the Philippines, Singapore, Thailand, Vietnam) and the six states with which ASEAN has existing FTAs (Australia, China, India, Japan, South Korea and New Zealand).
RCEP negotiations were formally launched in November 2012 at the ASEAN Summit in Cambodia.
Aim: RCEP aims to boost goods trade by eliminating most tariff and non-tariff barriers — a move that is expected to provide the region’s consumers greater choice of quality products at affordable rates. It also seeks to liberalise investment norms and do away with services trade restrictions.
Why has it assumed so much significance in recent times?
When inked, it would become the world’s biggest free trade pact. This is because the 16 nations account for a total GDP of about $50 trillion and house close to 3.5 billion people. India (GDP-PPP worth $9.5 trillion and population of 1.3 billion) and China (GDP-PPP of $23.2 trillion and population of 1.4 billion) together comprise the RCEP’s biggest component in terms of market size.
Why is India concerned?
Greater access to Chinese goods may have impact on the Indian manufacturing sector. India has got massive trade deficit with China. Under these circumstances, India proposed differential market access strategy for China.
There are demands by other RCEP countries for lowering customs duties on a number of products and greater access to the market than India has been willing to provide.
Why India should not miss RCEP?
If India is out of the RCEP, it would make its exports price uncompetitive with other RCEP members’ exports in each RCEP market, and the ensuing export-losses contributing to foreign exchange shortages and the subsequent extent of depreciation of the rupee can only be left to imagination. Some of the sectors that have been identified as potential sources of India’s export growth impulses under RCEP to the tune of approximately $200 billion.
There are more compelling trade and economic reasons for RCEP to become India-led in future, than otherwise. India would get greater market access in other countries not only in terms of goods, but in services and investments also.
What to study?
Static Part: RCEP- Key facts and Geographical location of member countries.
Dynamic and Current: Why is India concerned, gains and losses from this, what India needs to do?
Protocol amending India-China DTAAThe Government of Republic of India and the Government of the People’s Republic of China have amended the Double Taxation Avoidance Agreement (DTAA) by signing a Protocol.
Purpose of the amendment of DTAA:
For the avoidance of double taxation.
For the prevention of fiscal evasion with respect to taxes on income.
Additional changes by signing the Protocol:
It updates the existing provisions for exchange of information to the latest international standards.
It incorporates changes required to implement treaty related minimum standards under the Action reports of Base Erosion & Profit Shifting (BEPS) Project, where India participated on an equal footing.
Under Section 90 of the Income-tax Act, 1961, India can enter into an agreement with a foreign country or specified territory for the avoidance of double taxation of income, for the exchange of information for the prevention of evasion.
Double Taxation Avoidance Agreement (DTAA):
It is referred as Tax Treaty, a bilateral economic agreement between two nations that aims to avoid or eliminate double taxation of the same income in two countries.
A DTAA applies in cases where a tax-payer resides in one country and earns income in another.
DTAAs can either be comprehensive to cover all sources of income or be limited to certain areas such as taxing of income from shipping, air transport, inheritance, etc.
India has DTAAs with more than eighty countries.