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The Supreme Court declared that any person conducting the invasive ‘two-finger’ or ‘three-finger’ vaginal test on rape or sexual assault survivors will be found guilty of misconduct.
In a judgment, a Bench led by Justice D.Y. Chandrachud said the sole reason behind using the “regressive” test on traumatised sexual assault survivors is to see whether the woman or girl was “habituated” to sexual intercourse.
Such a “concern” was irrelevant to fact whether she was raped or not. “Previous sexual experience is immaterial to the question of conduct”.
The faulty logic behind the test was that “a woman cannot be believed when she said she was raped merely for the reason that she was sexually active”.
This so-called test has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimises and re-traumatises women who may have been sexually assaulted, and is an affront to their dignity.
The ‘two-finger’ test or pre-vaginum test must not be conducted,” the Bench, also comprising Justice HimaKohli, directed.
The court pointed out the 2013 amendment of Section 53A in the Indian Evidence Act. The evidence of a victim’s character or her previous sexual experience with any person shall not be relevant to the issue of consent or the quality of consent in the prosecution of sexual offences.
Lula da Silva defeats Bolsonaro in Brazil presidential race (Page no. 1)
(GS Paper 2, International Relation)
Brazilian leftist leader Luiz Inacio Lula da Silva narrowly defeated President Jair Bolsonaro in a run-off election, but the far-right incumbent did not concede defeat on Sunday, raising concerns that he might contest the result.
The Supreme Electoral Court declared Mr. Lula the next President, with 50.9% of votes against 49.1% for Mr. Bolsonaro. The 77-year-old’s inauguration is scheduled for January 1.
It was a stunning comeback for the leftist former President and a punishing blow to Mr. Bolsonaro, the first Brazilian incumbent to lose a presidential race.
So far, Bolsonaro has not called me to recognise my victory, and I don’t know if he will call or if he will recognise my victory,” Mr. Lula told tens of thousands of jubilant supporters celebrating his win on Sao Paulo’s Paulista Ave.
In contrast to Mr. Bolsonaro’s silence, congratulations for Mr. Lula poured in from foreign leaders, U.S. President Joe Biden, Russian President Vladimir Putin, German Chancellor Olaf Scholz, French President Emmanuel Macron, and Prime Minister Narendra Modi.
The vote was a rebuke for the fiery far-right populism of Mr. Bolsonaro, who emerged from the back benches of Congress to forge a novel conservative coalition but lost support as Brazil ran up one of the worst death tolls of the coronavirus pandemic.
Mr. Biden congratulated Mr. Lula for winning “free, fair and credible elections”, joining the chorus of compliments from European and Latin American leaders.
Prime Minister Narendra Modi said in his congratulatory tweet that he looked “forward to working closely together to further deepen and widen our bilateral relations, as also our cooperation on global issues”.
States
First Kerala Jyothi award for MT Vasudevan Nair (Page no. 8)
(Miscellaneous)
Noted writer M.T. Vasudevan Nair will be conferred the first Kerala Jyothi award instituted by the State Government.
Actor Mammootty, playwright Omchery N.N. Pillai and former civil servant and social activist T. Madhava Menon have been selected for the Kerala Prabha award while biologist Sathyabhama Das Biju, magician GopinathMuthukad, sculptor KanayiKunhiraman, industrialist KochousephChittilappilly, scientist and educationist M.P. Parameswaran and singer VaikomVijayalakshmi will be presented the Kerala Sree award.
The jury was chaired by AdoorGopalakrishnan.
The Kerala awards have been instituted to recognise the contributions of distinguished personalities in various spheres of social life.
Editorial
Sequence of implementation, EWS quota outcomes (Page no. 10)
(GS Paper 2, Polity and Governance)
The original intent of the reservation policy in newly independent India was to level the playing field for the most marginalised sections, those stigmatised and discriminated against on account of their birth into specific caste and tribal groups.
While these groups were also economically deprived, that was not the main rationale for instituting compensatory discrimination in favour of these groups.
Over the decades, the instrument of reservation has expanded to include more groups under its ambit, leading to furious debates both about the general principle of affirmative action and about which groups deserve to be beneficiaries.
These disputes have resulted in complex legal cases, with the rulings providing the nuts-and-bolts mechanics that guide the implementation of the reservation policy on the ground.
This article draws attention to a crucial impending implementation decision about the economically weaker sections (EWS) quota, and shows how the sequence of implementation would result to diverging outcomes.
The reservation system in India takes two forms: vertical reservation (VR), which until 2019 was defined for stigmatised and marginalised social groups (SCs, STs and OBCs); and horizontal reservation (HR), applicable to cross-cutting categories such as women, people with disability (PWD), domicile, etc.
As long as the VR system was social group-based, no individual was eligible for multiple VR categories, since no individual can belong to multiple caste or tribal groups.
The 103rd Constitution Amendment Act in 2019, popularly known as the 10% quota for the so-called EWS, fundamentally altered the original raison d’être of reservations by opening VR to groups that are not defined in terms of hereditary social group identity (caste or tribe). EWS status is transient (that individuals can fall into or escape out of), but social groups are permanent markers of identity.
While this meant that in principle, an individual could belong to two VR categories (say, SC and EWS), the amendment explicitly removed individuals who are already eligible for one VR (SC, ST, or OBC) from the scope of EWS reservations. As a result of this exclusion, an individual could still be only eligible for at most one vertical category.
Exclusion of SCs, STs, OBCs from the scope of EWS reservation was immediately challenged in court on the grounds that it violated individual right to equality (that roughly corresponds to Articles 14-18 of the Indian Constitution).
On the last day of hearings at the Constitutional Bench of the Supreme Court, the following “compromise” proposal was made by G. Mohan Gopal: do not revoke the amendment but interpret the language of the amendment in a way that does not exclude SCs, STs, OBCs from the scope of EWS reservation.
A pathway to citizenship for Indian-origin Tamils (Page no. 10)
(GS Paper 2, Polity and Governance)
The Supreme Court of India has now posted the 232 petitions challenging the Citizenship (Amendment) Act (CAA) to be heard on December 6, 2022.
However, there is another issue linked to the subject, i.e., the unresolved status of Indian-origin Tamils who repatriated from Sri Lanka.
For over four decades, nearly 30,000 Indian-origin Tamils have been classified as stateless persons, based on technicalities.
Given their genealogical link to India, the Government of India needs to consider extending citizenship benefits to them in accordance with Indian bilateral obligations and international humanitarian principles and international conventions.
Under the British colonial government, Indian-origin Tamils were brought in as indentured labourers to work in plantations.
They remained mostly legally undocumented and socially isolated from the native Sri Lankan Tamil and Sinhalese communities due to the policies of the British. After 1947, Sri Lanka witnessed rising Sinhalese nationalism, leaving no room for their political and civil participation.
They were denied citizenship rights and existed as a ‘stateless’ population, numbering close to 10 lakh by 1960. As an ethno-linguistic minority without voting rights, this resulted in a double disadvantage till the two national governments addressed this issue.
Subsequently, under the bilateral Sirimavo-Shastri Pact (1964) and the Sirimavo-Gandhi Pact (1974), six lakh people along with their natural increase would be granted Indian citizenship upon their repatriation.
Thus, the process of granting Indian-origin Tamils (who returned to India till around 1982) began. However, the Sri Lankan civil war resulted in a spike in Sri Lankan Tamils and Indian-origin Tamils together seeking asylum in India. This resulted in a Union Ministry of Home Affairs directive to stop the grant of citizenship to those who arrived in India after July 1983.
Furthermore, the focus of the Indian and Tamil Nadu governments shifted to refugee welfare and rehabilitation. Over the next 40 years, the legal destiny of Indian-origin Tamils has been largely intertwined with that of Sri Lankan Tamil refugees, and both cohorts have been relegated to ‘refugee’ status.
This is because Indian-origin Tamils who arrived after 1983 came through unauthorised channels or without proper documentation, and came to be classified as ‘illegal migrants’ as per the CAA 2003. This classification has resulted in their statelessness and blocking of potential legal pathways to citizenship.
Explainer
The amendments to the IT Rules, 2021 (Page no. 12)
(GS Paper 2, Government Policies and Interventions)
The Ministry of Electronics and IT (MeitY) has notified amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) on October 28.
In June 2022, MeitY had put out a draft of the amendments and solicited feedback from the relevant stakeholders. The draft generated considerable discussion and comment on the regulation of social media in India.
World over, governments are grappling with the issue of regulating social media intermediaries (SMIs). Given the multitudinous nature of the problem — the centrality of SMIs in shaping public discourse, the impact of their governance on the right to freedom of speech and expression, the magnitude of information they host and the constant technological innovations that impact their governance — it is important for governments to update their regulatory framework to face emergent challenges.
In a bid to keep up with these issues, India in 2021, replaced its decade old regulations on SMIs with the IT Rules, 2021 that were primarily aimed at placing obligations on SMIs to ensure an open, safe and trusted internet.
As per the press note accompanying the draft amendments in June 2022, the stated objectives of the amendments were three-fold.
First, there was a need to ensure that the interests and constitutional rights of netizens are not being contravened by big tech platforms, second, to strengthen the grievance redressal framework in the Rules, and third, that compliance with these should not impact early stage Indian start-ups.
This translated into a set of proposed amendments that can be broadly classified into two categories. The first category involved placing additional obligations on the SMIs to ensure better protection of user interests while the second category involved the institution of an appellate mechanism for grievance redressal.
The notification of the final amendments carry forward all the amendments that it had proposed in June 2022.
First, the original IT Rules, 2021 obligated the SMIs to merely inform its users of the “rules and regulations, privacy policy and user agreement” that governed its platforms along with the categories of content that users are prohibited from hosting, displaying, sharing etc. on the platform.
This obligation on the SMIs has now been extended to ensuring that its users are in compliance with the relevant rules of the platform.
Further, SMIs are required to “make reasonable” efforts to prevent prohibited content being hosted on its platform by the users.
To a large extent, this enhances the responsibility and concomitantly the power of SMIs to police and moderate content on their platforms. This has been met with skepticism by both the platforms and the users given the subjective nature of speech and the magnitude of the information hosted by these platforms.
Text & context
The ambiguity of reservations for the poor: unconstitutional or not? (Page no. 13)
(GS Paper 2, Polity and Governance)
On September 27, a Constitution Bench led by CJI U. U. Lalit heard multiple petitions against reservations based solely on economic criteria introduced by the Constitution (103rd) Amendment Act, 2019.
After extensive hearings, the Bench reserved its judgment in the case. In this article dated January 22, 2019, AnupSurendranath tackles the idea that EWS reservations are unconstitutional.
The 103rd Constitution Amendment Act introducing special measures and reservations for ‘economically weaker sections’ (EWS) has been perceived as being obviously unconstitutional.
This article is sceptical of such a reading and takes the view that a constitutional challenge to the amendment will take us into unclear constitutional territories.
The strongest constitutional challenge might not be to the amendment itself but to the manner in which governments implement it.
There is no foregone conclusion to a potential challenge and we would do well to start identifying the core constitutional questions that arise. To be clear, I am here concerned only with questions that arise within constitutional law.
Special measures Article 15 stands amended enabling the state to take special measures (not limited to reservations) in favour of EWS generally with an explicit sub-article on admissions to educational institutions with maximum 10% reservations.
The amendment to Article 16 allows 10% reservations (and not special measures) for EWS in public employment and does so in a manner that is different from reservations for Scheduled Caste/Scheduled Tribes and Other Backward Classes.
The amendment leaves the definition of ‘economically weaker sections’ to be determined by the state on the basis of ‘family income’ and other economic indicators.
Also critical to this amendment is the exclusion of SC/STs, OBCs and other beneficiary groups under Articles 15(4), 15(5) and 16(4) as beneficiaries of the 10% EWS reservation.
A good point to start the constitutional examination is the Supreme Court’s view on reservations based purely on economic criteria. Eight of the nine judges in IndraSawhney (November 1992) held that the Narasimha Rao government’s executive order (and not a constitutional amendment) providing for 10% reservations based purely on economic criteria was unconstitutional.
News
SC to examine law depriving undertrials the right to vote (Page no. 14)
(GS Paper 2, Government Policies and Interventions)
The Supreme Court on Monday decided to examine a petition challenging a provision in the election law that imposes a blanket ban on under trials, persons confined in civil prisons and convicts serving their sentence in jails from casting their votes.
A Bench led by Chief Justice of India U.U. Lalit issued notice to the Union of India, Ministry of Home Affairs and the Election Commission of India on a petition filed by Aditya Prasanna Bhattacharya, a student of National Law School of India University, Bengaluru, who said that while convicts out on bail could vote, under trials, whose innocence or guilt has not been conclusively determined, and those confined in civil persons were deprived of their right to vote.
Mr. Bhattacharya, represented by advocate Zoheb Hossain, argued that Section 62(5) of the Representation of the People Act, 1951, mandates that “no person shall vote at any election is he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police”.
Mr. Hossain contended that the provision arbitrarily, through the use of “excessively broad language”, disenfranchises a large segment of the population of the country.
The latest National Crime Reports Bureau (NCRB) report of 2021 shows that a total of 5,54,034 prisoners were confined as on December 31, 2021 in various jails across the country.
The number of convicts, undertrial inmates and detenues were reported as 1,22,852, 4,27,165 and 3,470, respectively, accounting for 22.2%, 77.1% and 0.6% respectively at the end of 2021.
The number of undertrial prisoners has increased from 3,71,848 in 2020 to 4,27,165 in 2021. A hike of 14.9%. Uttar Pradesh has the maximum number of undertrials (21.2%, 90,606 undertrials) in the country followed by Bihar (13.9%, 59,577 undertrials) and Maharashtra (7.4%, 31,752 undertrials) at the end of last year.
The petition said that “denying penitentiary inmates the right to vote is more likely to send messages that undermine respect for the law and democracy than messages that enhance those values. Denying the right to vote does not comply with the requirements for legitimate punishment”.
Social media can wield their ‘algorithm power’ to red-flag fake news: CEC (Page no. 16)
(GS Paper 3, Polity and Governance)
Inclusive elections truthfully reflect the expression of the collective will of the people and are a hallmark of democracy, Chief Election Commissioner Rajiv Kumar said even as he stressed the challenges of social media and their intersection with election management bodies (EMBs).
The EMBs, the CEC said, expected social media platforms to use their “algorithm power, to proactively red-flag fake news”.
His comments came at a two-day international conference on the “Role, framework and capacity of election management bodies” organised by the Election Commission (EC) under the ‘Cohort on Election Integrity’ led by the Commission and established as a follow-on to the ‘Summit for Democracy’ held in December last year.
Speaking on the pressing challenges before the EMBs today, Mr. Kumar stressed their intersection with social media platforms.
More early or deeper red-flagging of fake news based on known modus operandi and genres is not an unfair expectation from the EMBs.
Such a proactive approach to counter fake news would facilitate “credible electoral outcomes” that would help preserve “freedoms” which these platforms required to thrive.
He said that free, fair, inclusive, accessible and inducement-free elections, a cornerstone of democratic polity, were a precondition to peace and developmental dividends.
These threshold concepts, he said, embody the understanding that sovereignty belongs to and flows from the people of a country.
U.S. plans to deploy B-52s to Australia amid China tensions (Page no. 17)
(GS Paper 2, International Relation)
The United States is planning to deploy up to six nuclear-capable B-52 bombers to an air base in northern Australia, amid heightened tensions with China.
Dedicated facilities for the bombers will be set up at the Royal Australian Air Force’s remote Tindal base, about 300 km south of Darwin, the capital of Australia’s Northern Territory.
The development was first reported by the Australian Broadcasting Corp’s Four Corners programme, citing U.S. documents.
Prime Minister Anthony Albanese said Australia engages with the United States on defence alliances “from time to time”.
Australia’s Northern Territory is already host to frequent military collaborations with the U.S.
When asked for a comment at a regular briefing on Monday, Chinese Foreign Ministry spokesman Zhao Lijian said defence and security cooperation between countries should not target third parties.