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Policy&Politics

FAKE ENCOUNTER AND CONSTITUTIONAL MORALITY

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Cicero once famously observed, “We are in bondage to the law in order that we may be free.” John Adams said about the Massachusetts Constitution that it was intended to have a “government of laws not of men”. The Basic Structure of the Indian Constitution also talks about ‘the rule of law’. However, in India fake encounters are being practiced which is evident from time to time. Fake encounters are extrajudicial killing of persons who are generally in the custody of the law enforcing agencies. Encounters are not only against the Human rights as enshrined under International Covenant on Civil and Political Rights (ICCPR) but it is also against the Fundamental rights and the rule of Law. The Indian constitution gives the right to have a free & fair trial, which is a part of Principle of Natural Justice. However, unfortunately India has a bad past of Fake encounters. The encounter in Bengal and Punjab in the year 1960s and 1980s respectively shames us. Further, encounters can be seen not only in the disturbed areas such as Kashmir or the northeast but it is also evident in the ordinary circumstances in the course of their regular discharge of duties. In the philbhit encounters of 1991, 10 passengers from a bus of Sikh pilgrims were killed merely on the calim of being Khalistani terrorists. Recently, THE JUSTICE V S Sirpurkar Commission, was set up by the Supreme Court to probe the killing in an alleged encounter of four accused in the gang rape and murder of a veterinarian on the outskirts of Hyderabad in 2019, has submitted his report. The commission believed that the police has deliberately fired the accused “with an intent to cause their death”. Further, the committee has also recommended action against ten police officers and personnel under various penal charges including Murder.

The World Justice Project Index takes into account of 139 countries, and India’s rank in 2020-21 was a dismal 79th. Denmark topped the list. In fact, the criminal system of India is far behind Nepal and Sri Lanka, which ranked at 70 and 76 respectively. Police encounters, which have become a common phenomenon, do contribute to our low rank on ‘rule of law’ index.

LEGAL PROVISIONS DEALING WITH THE ENCOUNTER IN INDIA

There is no direct provision which authorizes to kill any criminal. However, there are certain provisions, which bestows officers involved in encounters, with certain powers to deal with criminals had to be resorted to in order to save themselves from attack by alleged criminals. Section 96-106 of Indian Penal Code, 1860 gives the right to have Private Defense. Section 100 specifies the various circumstances (death, grievous hurt, kidnapping, rape, acid attack etc.) under which a person causing death in exercise of private defense, will be justified & excused from Criminal liability.

Section 100 specifies the various circumstances such as death, grievous hurt, kidnapping, rape, acid attack etc. under which a person causing death in exercise of private defense, will be justified & excused from Criminal liability. Further, there is a special act by the name called ‘Armed Forces Special Powers Act’,1958 (also known as AFSPA), which arms the security forces to deal with problems of law & order in disturbed areas. The Power to declare any area as disturbed under this act rests with both the Central as well as State governments. AFSPA states that- “Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,- (a) If he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances.” Apart from these Provisions, Section 46 of Cr.P.C also enables Police to use force resulting in the killing of an accused at the time of arrest, if the offence allegedly committed by the accused is punishable with death or life imprisonment. Use of force for self-defence should continue as long as danger to the body or property continues.

Article 14 of the Indian Constitution states that “The State shall not deny to any person equality before the law or equal protection of laws within the territory of India”. Since in the cases of Fake Encounters, the deceased is killed by the law enforcement agencies which is required to make him face trail in court of law, but the agencies kill the accused arbitrarily, thus circumventing the legal process & also denying to him equality before law which he could have got, had he faced trial in a court of law & also the presumption of innocence.

Article 21 of the Indian Constitution guarantees the fundamental right to life and personal liberty, which can only be deprived in accordance with procedure established by law. Such procedure has to be reasonable, fair and just as held in judgment of Maneka Gandhi vs Union of India case (1978). This right extends to all persons without exception including a person accused of a heinous crime – even if that person has a criminal record.

Under Article 22 of the Constitution, the right of an accused person to be defended by an advocate of his choice is recognised as a fundamental right. This is also a statutory right given under Section 303 of the Cr.P.C, 1973. Moreover, the accused person can avail of all legal defenses available to him and he enjoys the presumption of innocence until proven guilty.

ROLE OF JUDICIARY IN COMBATING WITH FAKE ENCOUNTER

Supreme Court in the Judgment of Prakash Kadam & etc. v Ramprasad Vishwanath Gupta & Anr (2011), observed that the ‘Fake encounters’ are equivalent to cold blooded’ and ‘brutal murder’ by persons who are expected to uphold the supremacy of law. Further, it was also observed by the Hon’ble court that if crimes are committed by common people, ordinary punishment should be given. However, if the same offence is committed by policemen much stricter punishment should be given to them because they do an act totally opposed to their duties, and where a fake encounter is established against policemen in a trial, they must be given death sentence, considering it as the ‘rarest of rare cases’.

Moreover, Supreme Court in the case of Om Prakash v State of Jharkhand (2012), held that the incidents OF Fake Encounter as ‘State-sponsored terrorism’ and stated that it is not the duty of the policemen to neutralize the accused just because he is a ‘dreaded criminal’. The police have to arrest the culprit and put them up for trial. Such killings must not be cherished.

Once again Supreme court in the case of PUCL v State of Maharashtra (2014), after taking into account the suggestions made by Bombay High Court, the Counsels, National Human Rights Commission (NHRC) & other stakeholders issued some f guidelines to be followed in the investigation of death following police encounters. The Apex court held that ‘Article 21 of the Constitution guarantees ‘sacred and cherished right’ to life or personal liberty to ‘every single person’ in the country and that even the state is not exempt to abide by that right.

SUGGESTION & CONCLUSION

Sometimes, it has been seen that almost the entire nation celebrates the encounter. Especially, when the matter is a Rape case. However, such cherished should not take place. It is against the basic morality of the Indian Constitution. Sometimes, such incidents are a paragon of ‘Justice hurried is Justice buried’. Further, many people mark this as a ‘victory’. However, in many cases, the entire story gets turned and the National Crime Record Bureau (NCRB) also states the same. As per the NCRB report, a total of 100 deaths in police custody in the year 2017, and the maximum number of deaths in prison happened in Andhra Pradesh, where 27 people lost their lives. Fifteen custodial deaths each were reported in Gujarat and Maharashtra. What’s more shocking is, that not a single person has been convicted for the 100 deaths in 2017. Recently, in the Hyderabad Encounter case, the SC panel says to book 10 cops for killing 4 accused. The Commission says police deliberately fired at the accused with intent to kill. In the light of the same, we can confer that there is an urgent need to work on these areas and we have to re-define the ‘human rights in the Indian context’.

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Policy&Politics

Govt extends date for submission of R&D proposals

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The Government has extended the deadline for submission of proposals related to R&D scheme under the National Green Hydrogen Mission. The R&D scheme seeks to make the production, storage, transportation and utilisation of green hydrogen more affordable. It also aims to improve the efficiency, safety and reliability of the relevant processes and technologies involved in the green hydrogen value chain. Subsequent to the issue of the guidelines, the Ministry of New & Renewable Energy issued a call for proposals on 16 March, 2024.

While the Call for Proposals is receiving encouraging response, some stakeholders have requested more time for submission of R&D proposals. In view of such requests and to allow sufficient time to the institutions for submitting good-quality proposals, the Ministry has extended the deadline for submission of proposals to 27th April, 2024.

The scheme also aims to foster partnerships among industry, academia and government in order to establish an innovation ecosystem for green hydrogen technologies. The scheme will also help the scaling up and commercialisation of green hydrogen technologies by providing the necessary policy and regulatory support.

The R&D scheme will be implemented with a total budgetary outlay of Rs 400 crore till the financial year 2025-26. The support under the R&D programme includes all components of the green hydrogen value chain, namely, production, storage, compression, transportation, and utilisation.

The R&D projects supported under the mission will be goal-oriented, time bound, and suitable to be scaled up. In addition to industrial and institutional research, innovative MSMEs and start-ups working on indigenous technology development will also be encouraged under the Scheme.

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Policy&Politics

India, Brazil, South Africa to press for labour & social issues, sustainability

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The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment.

India, on Thursday, joined the G20’s two-day 2nd Employment Working Group (EWG) meeting under the Brazilian Presidency which is all set to address labour, employment and social issues for strong, sustainable, balanced and job-rich growth for all. India is co-chairing the 2nd EWG meeting, along with Brazil and South Africa, and is represented by Sumita Dawra, Secretary, Labour & Employment.

The Indian delegation also comprises Rupesh Kumar Thakur, Joint Secretary, and Rakesh Gaur, Deputy Director from the Ministry of Labour & Employment. India has pointed out that the priority areas of the 2nd EWG at Brasilia align with the priority areas and outcomes of previous G20 presidencies including Indian presidency, and commended the continuity in the multi-year agenda to create lasting positive change in the world of work. This not only sustains but also elevates the work initiated by the EWG during the Indian Presidency.

The focus areas for the 2nd EWG meeting are — creating quality employment and promoting decent labour, addressing a just transition amidst digital and energy transformations, leveraging technologies to enhance the quality of life for al and the emphasis on gender equity and promoting diversity in the world of employment for inclusivity, driving innovation and growth. On the first day of the meeting, deliberations were held on the over-arching theme of promotion of gender equality and promoting diversity in the workplace.

The Indian delegation emphasized the need for creating inclusive environments by ensuring equal representation and empowerment for all, irrespective of race, gender, ethnicity, or socio-economic background. To increase female labour force participation, India has enacted occupational safety health and working conditions code, 2020 which entitles women to be employed in all establishments for all types of work with their consent at night time. This provision has already been implemented in underground mines.

In 2017, the Government amended the Maternity Benefit Act of 1961, which increased the ‘maternity leave with pay protection’ from 12 weeks to 26 weeks for all women working in establishments employing 10 or more workers. This is expected to reduce the motherhood pay gap among the working mothers. To aid migrant workers, India’s innovative policy ‘One Nation, One Ration Card’ allows migrants to access their entitled food grains from anywhere in the Public Distribution System network in the country.

A landmark step in fostering inclusion in the workforce is the e-Shram portal, launched to create a national database of unorganized workers, especially migrant and construction workers. This initiative, providing the e-Shram card, enables access to benefits under various social security schemes.

The portal allows an unorganized worker to register himself or herself on the portal on self-declaration basis, under 400 occupations in 30 broad occupation sectors. More than 290 million unorganized workers have been registered on this portal so far.

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Policy&Politics

India to spend USD 3.7 billion to fence Myanmar border

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India plans to spend nearly $3.7 billion to fence its 1,610-km (1,000-mile) porous border with Myanmar within about a decade, said a source with direct knowledge of the matter, to prevent smuggling and other illegal activities. New Delhi said earlier this year it would fence the border and end a decades-old visa-free movement policy with coup-hit Myanmar for border citizens for reasons of national security and to maintain the demographic structure of its northeastern region.

A government committee earlier this month approved the cost for the fencing, which needs to be approved by Prime Minister Narendra Modi’s cabinet, said the source who declined to be named as they were not authorised to talk to the media. The prime minister’s office and the ministries of home, finance, foreign affairs and information and broadcasting did not immediately respond to an email seeking comment.

Myanmar has so far not commented on India’s fencing plans. Since a military coup in Myanmar in 2021, thousands of civilians and hundreds of troops have fled from there to Indian states where people on both sides share ethnic and familial ties. This has worried New Delhi because of risk of communal tensions spreading to India. Some members of the Indian government have also blamed the porous border for abetting the tense situation in the restive north-eastern Indian state of Manipur, abutting Myanmar.

For nearly a year, Manipur has been engulfed by a civil war-like situation between two ethnic groups, one of which shares lineage with Myanmar’s Chin tribe. The committee of senior Indian officials also agreed to build parallel roads along the fence and 1,700 km (1,050 miles) of feeder roads connecting military bases to the border, the source said.

The fence and the adjoining road will cost nearly 125 million rupees per km, more than double that of the 55 million per km cost for the border fence with Bangladesh built in 2020, the source said, because of the difficult hilly terrain and the use of technology to prevent intrusion and corrosion.

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Policy&Politics

ONLY 2-3% RECOVERED FROM $2-3 TN ANNUAL ILLEGAL TRADE THROUGH BANKING: INTERPOL

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However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity.

In a press briefing held on Wednesday, Interpol Secretary General Jurgen Stock unveiled alarming statistics regarding the extent of undetected money laundering and illegal trade transactions plaguing the global banking network. Stock revealed that over 96% of the money transacted through this network remains undetected, with only 2-3% of the estimated USD 2-3 trillion from illegal trade being tracked and returned to victims.

Interpol, working in conjunction with law enforcement agencies and private financial sectors across its 196 member countries, is committed to combating the rising tide of fraud perpetrated by illicit traders. These criminal activities encompass a wide spectrum, including drug trafficking, human trafficking, arms dealing, and the illicit movement of financial assets.

Stock emphasized the urgent need to establish mechanisms for monitoring transactions within the global banking network. Currently, efforts are underway to engage banking associations worldwide in setting up such a framework. However, Stock highlighted the enormity of the challenge, noting that between 40% and 70% of criminal profits are reinvested, perpetuating the cycle of illicit financial activity. The lack of real-time information sharing poses a significant obstacle to law enforcement agencies in their efforts to combat money laundering and illegal trade.

Stock underscored the role of Artificial Intelligence (AI) in exacerbating this problem, citing its use in voice cloning and other fraudulent activities. Criminal organizations are leveraging AI technologies to expand their operations and evade detection on a global scale. Stock emphasized the importance of enhanced cooperation between law enforcement agencies and private sector banking groups. Realtime information sharing is crucial in the fight against illegal wealth accumulation.

Drawing inspiration from initiatives such as the “Singapore Anti-Scam Centre,” Stock called for the adoption of similar models in other countries to strengthen the collective response to financial crimes. In conclusion, Stock’s revelations underscore the pressing need for concerted action to combat global financial crimes. Enhanced cooperation between public and private sectors, coupled with innovative strategies for monitoring and combating illicit transactions, is essential to safeguarding the integrity of the global financial system.

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Policy&Politics

FM defends Atal Pension Scheme, highlights guaranteed returns

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Finance Minister Nirmala Sitharaman defended the Atal Pension Yojana (APY) against Congress criticism, asserting its design based on choice architecture and a guaranteed minimum 8% return. She emphasized the scheme’s opt-out feature, facilitating automatic premium continuation unless subscribers choose otherwise, promoting retirement savings. Sitharaman countered Congress allegations of coercion, stating the APY’s guaranteed returns irrespective of market conditions, supplemented by government subsidies.

Responding to Congress’s claim of scheme misuse, Sitharaman highlighted its intended beneficiaries – the lower-income groups. She criticized Congress for its alleged elitist mindset and emphasized the scheme’s success in targeting the needy. Sitharaman accused Congress of exploiting vote bank politics and coercive tactics, contrasting it with the APY’s transparent framework. The exchange underscores the political debate surrounding social welfare schemes, with the government defending its approach while opposition parties raise concerns about implementation and efficacy.

Finance Minister Nirmala Sitharaman’s robust defense of the Atal Pension Yojana (APY) against Congress criticism highlights the ongoing debate over social welfare schemes in India. Sitharaman’s assertion of the APY’s design principles, including its opt-out feature and guaranteed minimum return, underscores the government’s commitment to promoting retirement savings among lower-income groups. The Atal Pension Yojana, named after former Prime Minister Atal Bihari Vajpayee, was launched in 2015 to provide pension benefits to workers in the unorganized sector. It aims to address the significant gap in pension coverage among India’s workforce, particularly those employed in informal and low-income sectors. The scheme offers subscribers fixed pension amounts ranging from Rs. 1,000 to Rs. 5,000 per month, depending on their contribution and age at entry, after attaining the age of 60. Sitharaman’s response comes after Congress criticism alleging the APY’s inefficacy and coercive tactics in enrolment.

Congress General Secretary Jairam Ramesh described the scheme as poorly designed, citing instances of subscribers dropping out due to unauthorized account openings. However, Sitharaman refuted these claims, emphasizing the APY’s transparent and beneficiary-oriented approach. The finance minister’s defense focuses on three key aspects of the APY: Choice Architecture: Sitharaman highlights the opt-out feature of the APY, which automatically continues premium payments unless subscribers choose to discontinue.

This design element aims to encourage long-term participation and ensure consistent retirement savings among subscribers. By simplifying the decision-making process, the scheme seeks to overcome inertia and promote financial discipline among participants. Guaranteed Minimum Return: Sitharaman underscores the APY’s guarantee of a minimum 8% return, irrespective of prevailing interest rates. This assurance provides subscribers with confidence in the scheme’s financial viability and incentivizes long-term savings.

The government’s commitment to subsidizing any shortfall in actual returns further strengthens the attractiveness of the APY as a retirement planning tool. Targeting the Needy: Sitharaman defends the predominance of pension accounts in lower income slabs, arguing that it reflects the scheme’s successful targeting of its intended beneficiaries – the poor and lower-middle class. She criticizes Congress for its alleged elitist mindset and suggests that the party’s opposition to welfare schemes like the APY stems from a disconnect with the needs of marginalized communities. Sitharaman’s rebuttal also addresses broader political narratives surrounding social welfare policies in India.

She accuses Congress of exploiting vote bank politics and coercive tactics, contrasting it with the transparent and inclusive framework of the APY. The exchange underscores the ideological differences between the ruling Bharatiya Janata Party (BJP) and the opposition Congress, with each side advocating for their vision of social welfare and economic development. In addition to defending the APY, Sitharaman’s remarks shed light on the broader challenges and opportunities facing India’s pension sector.

Despite significant progress in expanding pension coverage through schemes like the APY, the country still grapples with issues such as financial literacy, informal employment, and pension portability. Addressing these challenges requires a multifaceted approach involving government intervention, private sector participation, and civil society engagement.

As India strives to achieve its vision of inclusive and sustainable development, initiatives like the APY play a crucial role in promoting economic security and social equity. Sitharaman’s defense of the scheme underscores the government’s commitment to addressing the needs of vulnerable populations and ensuring their financial well-being in the long run.

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Economic

Regulatory steps will make financial sector strong, but raise cost of capital

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India’s financial system regulator, the Reserve Bank of India (RBI), is demonstrating a serious commitment to improving governance and transparency at finance companies and banks, with the RBI’s recent measures aimed at curtailing lenders’ overexuberance, enhancing compliance culture and safeguarding customers.

While the global ratings firm has appreciated the RBI’s “diminishing tolerance for non-compliance, customer complaints, data privacy, governance, know-your-customer (KYC), and anti-money laundering issues”, it has cautioned that increased regulatory risk could impede growth and raise the cost of capital for financial institutions. “Governance and transparency are key weaknesses for the Indian financial sector and weigh on our analysis. The RBI’s new measures are creating a more robust and transparent financial system,” says S&P Global Credit Analyst, Geeta Chugh. “India’s regulator has underscored its commitment to strengthening the financial sector. The drawback will be higher capital costs for institutions,” Chugh cautions.

The RBI measures include restraining IIFL Finance and JM Financial Products from disbursing gold loan and loans against shares respectively and asking Paytm Payments Bank (PPBL) to stop onboarding of new customers. Earlier in December 2020, the RBI suspended HDFC Bank from sourcing new credit card customers after repeated technological outages. These actions are a departure from the historically nominal financial penalties imposed for breaches, S&P Global notes.

Besides, as the global agency points out, the RBI has decided to publicly disclose the key issues that lead to suspensions or other strict actions against concerned entities and become more vocal in calling out conduct that it deems detrimental to the interests of customers and investors. “We believe that increased transparency will create additional pressure on the entire financial sector to enhance compliance and governance practices,” adds Chugh. The global agency has also lauded the RBI’s recent actions demonstrating scant tolerance for any potential window-dressing of accounts.

These actions include the provisioning requirement on alternative investment funds that lend to the same borrower as the bank finance company. Amidst the possibility of some retail loans, such as personal loans, loans against property, and gold loans getting diverted to invest in stock markets and difficulty of ascertaining the end-use of money in these products, S&P Global underlines the faith of market participants that the RBI and market regulator, the Securities and Exchange Board of India, want to protect small investors by scrutinizing these activities more cautiously.

On the flip side, at a time of tight liquidity, the RBI’s new measures are likely to limit credit growth in fiscal 2025 (year ending March 2025). “We expect loan growth to decline to 14 per cent in fiscal 2025 from 16 per cent in fiscal 2024, reflecting the cumulative impact of all these actions,” says Chugh. The other side of the story is that stricter rules may disrupt affected entities and increase caution among fintechs and other regulated entities and the RBI’s decision to raise risk weights on unsecured personal loans and credit cards may constrain growth. Household debt to GDP in India (excluding agriculture and small and midsize enterprises) increased to an estimated 24 per cent in March 2024 from 19 per cent in March 2019. Growth in unsecured loans has also been excessive and now forms close to 10 per cent of total banking sector loans.

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