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1. SC Judgement On Sabarimala Issue

1.1 More on News

  • Article 14: provides for Equality before law and equal protection of the law.

  • Article 15: Prohibits discrimination on the grounds only of religion, race, caste, sex or place of birth.

  • Article 17: Abolishes untouchability and forbids its practice in any form.

  • Article 25 provides that all persons enjoy the right to freely practise their religion.

  • The ‘essentiality’ test was evolved by the Supreme Court to determine whether a religious practice was protected under Article 25.

  • The essential practice of a religion is beyond interference by the State and subject only to the restrictions on the basis of the grounds contained in Article 25.

  • On the other hand, a non-essential religious practice is not a fundamental right and can be restricted by the State on any reasonable ground.

  • The Supreme Court in Indian Young Lawyers’ Association v/s State of Kerala Case declared Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act of 1965, which authorizes restriction on women “of menstruating age”, as ultra vires the Constitution.

  • Supreme Court set aside a Kerala High Court judgment of 1991 that upheld the prohibition, pointing that the celibate nature of the deity was “a vital reason for imposing this restriction on young women”.

1.2. Arguments against restrictions of women:

  • Banning entry was derogatory for women: Morality must not be viewed narrowly from the perspective of an individual, a section or religious sect. Individual dignity of women could not be at the mercy of a mob.

  • Prohibition was a hegemonic patriarchy: Patriarchy in religion cannot trump the freedom to practise religion.

  • Exclusion on the grounds of biological and physiological features was unconstitutional: it violated the right to equality and dignity of the women under Article 14 and 15 of the Constitution. Moreover, prohibition was a form of untouchability and was thus against Article 17 of the Constitution.

  • Prohibition was not an essential practice of religion under Article 25 of the Constitution: thus it was not covered under the right to freedom of religion.

  • Fundamental Rights are meant for individuals and not deities or idols: The Fundamental Rights guaranteed under Part III of the Constitution recognizes the individuals as a basic unit. The argument that the right to preserve the celibacy of the deity is a protected constitutional right does not apply.

  • Right to worship is equally available to men and women: Woman’s right to pray was not dependent on any law but it is a constitutional right. Religion cannot become a cover to exclude and deny this basic right to worship to women.

1.3. Arguments in favor of restrictions on women:

  • Religious communities/denominations should decide what constitutes an essential religious practice: It should not be decided by judges on the basis of their personal viewpoints.

  • Judicial Overreach: by determining whether a particular practice or custom is essential or integral to a religion, the court leaves the rational world of laws and constitutional rights and enters into the realm of theology, thus leading to judicial overreach.

  • Judgment confuses diversity with discrimination: it ignores the ground social realities of India and immense diversities. Also judges must take special care while dealing with a sensitive issue like religion.

  • India being a pluralistic society with diverse faiths, constitutional morality gave freedom to practice even irrational or illogical customs and usages: Constitutional morality required harmonization of rights of all persons, religious denominations or sects, to ensure that the religious beliefs of none were undermined.

  • Freedom to practice their beliefs as enshrined in Article 25 of the Constitution: Ayappa devotees had attributes of a religious denomination such as distinct names, properties, etc. Also Sabarimala, temple was not funded out of the Consolidated Fund. Temple Management thus contends that they were allowed to frame rules for the shrine without State’s interference.

  • Historic Origins of the restrictions: as the entry of women and girls of menstruating age was antithetical to the “Naishtika Brahmachari” (celibate) nature of the deity, the prohibition was not based on misogyny.

  • It was physiologically difficult for women to observe a 41-day penance for the deity: the pilgrimage requires tough processes to be carried out for 41 days which would be difficult for women.

  • Challenging religious practices: In a pluralistic society comprising of people with diverse faith, belief and traditions, to entertain PILs challenging religious practices followed by any group, sect or denominations, could cause serious damage to the constitutional and secular fabric of the country.

  • Unique geographical aspects and specific circumstances at the hill temple should have been considered: given that the temple lies at ecologically sensitive Western Ghats, providing extended facilities for women devotees would require expansion and would impact negatively on the environment.

Way Forward

  • Internal pressures to change secure long--lasting reforms with less of a backlash than when reforms are imposed by the law. Religious reforms in matters that positively affect life and liberty does call for judicial intervention, however, Courts cannot be substitute for social reform movements.

  • The ruling will have wider impacts on other similar customs and practices at other places of worship too.

  • The Temple management must provide adequate amenities for women devotees to smoothly implement the SC order.

2. Dowry Harassment Law

Background

Section 498A IPC

  • Husband or relative of husband of a woman subjecting her to cruelty–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.

  • The Supreme Court last year ordered that ‘family welfare committees’ to be set up in districts and these committees were supposed to act as a vanguard against “disgruntled wives” using the anti-dowry harassment provision of Section 498-A of the Indian Penal Code (IPC) as a “weapon” against their husbands and in-laws, young and old, rather than as a “shield”.

  • It had held that no arrest should normally be effected on dowry harassment complaints until the committee confirms the genuineness. Even the police could register an FIR only after the committee concerned cleared the complaint as valid and not frivolous.

New verdict

  • Supreme Court in its latest verdict held that such panels had no place under the established criminal procedural law and they were beyond the Code of Criminal Procedure Code.

  • It restored police’s power to immediately register an FIR and act on a dowry harassment complaint filed by a married woman.

  • Those arrested for cruelty to a married woman over dowry can approach the courts for bail to prevent the alleged misuse of the law.

  • The offence is both non-cognisable and non-bailable, which implies that bail can only be granted at the discretion of a magistrate. The bail petitions will be heard the same day as far as possible.

2.1. Section 498A IPC- Analysis

2.2. Arguments Against

  • The law has become a source of blackmail and harassment of husbands and others. As once a complaint (FIR) is lodged it becomes an easy tool in the hands of the Police to arrest or threaten to arrest the husband and other relatives without even considering the intrinsic worth of the allegations and making a preliminary investigation.

  • When the members of a family are arrested and sent to jail, with no immediate prospect of bail, the chances of amicable re-conciliation or salvaging the marriage, will be lost once and for all.

  • Pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated.

  • It is pointed out that the sting is not in Section 498A as such, but in the provisions of CrPC making the offence non-compoundable and nonbailable.

2.3. Arguments in favour

  • Section 498A and legislations like Protection of Women from Domestic Violence Act have been specifically enacted to protect a vulnerable section of the society who have been the victims of cruelty and harassment. The social purpose behind it will be lost if the rigour of the provision is diluted.

  • The abuse or misuse of law is not peculiar to this provision. The misuse can however be curtailed within the existing framework of law. For instance, the Ministry of Home Affairs can issue ‘advisories’ to State Governments to avoid unnecessary arrests and to strictly observe the procedures laid down in the law governing arrests.

  • Once the offending family members get the scent of the complaint, there may be further torture of the complainant and her life and liberty may be endangered if the Police do not act swiftly and sternly.

Way forward

  • The power to arrest should only be exercised after a reasonable satisfaction is reached as to the bona fides of a complaint and the complicity of those against whom accusations are made.

  • The “Crime Against Women Cells” should be headed by well trained and senior lady police officers. These steps would go a long way in preventing the so-called misuse.

  • Steps can be taken to effect conciliation between the spouses in conflict and the recourse to filing of a charge-sheet under section 498A shall be had only in cases where such efforts fail and there appears to be a prima facie case.

  • Counselling of parties should be done by professionally qualified counsellors and not by the Police.

3. Adultery

3.1 Section 497

  • Section 497 says "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery."

  • The offence of adultery entailed a maximum punishment of five years, or with fine, or both

  • The apex court had earlier on three separate occasions, in 1954, 1985 and 1988, upheld the constitutionality of Section 497.

3.2. Court’s Stand

  • Supreme Court held that the 158-year-old law was unconstitutional and fell foul of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality). It destroys and deprives women of dignity and offends sexual freedom of women..

  • Mere adultery can't be a crime unless it attracts the scope of Section 306 (abetment to suicide) of the IPC. It can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence.

  • Equality is the governing principle of a system and husband is not the master of the wife. Women must be treated with equality and any discrimination shall invite the wrath of Constitution. Section 497 IPC which deals with Adultery is absolutely manifestly arbitrary.

  • The apex court also declared Section 198(1) and 198(2) of the CrPC, which allows a husband to bring charges against the man with whom his wife committed adultery, unconstitutional.

3.3. Ambiguities in Adultery Law

  • If a married man has sexual intercourse, outside his marriage, but with an unmarried woman, that does not amount to an offence under the provision though it also effects the sanctity of marriage.

  • If the husband of a woman connives with another man for the latter to participate in sexual intercourse with the former’s wife, then there would be no adultery.

  • A woman committing adultery is not even deemed to be an “abettor” to the offence. Also it legalises the act of Adultery if committed by with the consent or connivance of the husband of the woman who is party to the act.

  • Section 198(2) of the Cr. P. C. allows the initiation of criminal proceedings for Adultery only at the instance of the husband of the adulteress, but the wife of the man party to the act of adultery cannot institute a complaint.

Conclusion

  • The SC’s new verdict that matrimonial issues fall in the realm of civil law and need not be resolved by criminal law is quite rational. The verdict is not promoting adultery; it just says that adultery is not a criminal offence. However, it should also be the duty of court and the society to make sure that the changes are not used to perpetuate adultery.

4. Section 377 Decriminalized

4.1. More on News

  • The ruling declares that Section 377 violates Articles 14, 15 and 21 insofar as it penalises any consensual sexual relationship between two adults in private, be it homosexual, heterosexual, lesbian or transgender persons.

  • Provisions of Section 377 remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.

4.2. Background on Section 377 of IPC and related Judicial Pronouncements

  • Section 377 of the Indian Penal Code, 1861, (IPC) came into force in 1861 during the British rule to criminalise sexual activities “against the order of nature”, including homosexual activities.

Two landmark judgments on sexual orientation and privacy

  • National Legal Services Authority (NALSA) case, 2014- In this case concerning the rights of transgender people, the court ruled that there could be no discrimination on the basis of sexual orientation and gender identity.

  • In Justice K.S. Puttaswamy (2017), or the ‘privacy case’, a nine-judge Bench ruled that “sexual orientation is an essential attribute of privacy”. It said that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”.

  • One of the first legal challenges to Section 377 came in 1994, when the NGO AIDS Bhedbhav Virodhi Andolan (ABVA) filed a petition for its repeal which was dismissed.

  • In July 2009, in Naz Foundation case the Delhi High Court had decriminalised homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India.

  • The Supreme Court in 2013 in the Suresh Kumar Koushal versus Naz Foundation case overruled the Delhi High Court’s order on the basis of the fact that “miniscule fraction of the country’s population constitute LGBTQ,” and that in over 150 years less than 200 people were prosecuted for committing offence under the section. Thus, the Supreme Court reinforced the criminalisation of homosexuality.

4.3 News Highlight of the verdict

  • Sexual autonomy and Right to Privacy: A person’s sexual orientation and autonomy to choose his/her sexual partner is an important pillar and an in segregable facet of individual liberty. It is an expression of identity protected in various ways by Article 14, 15 and 21. Discrimination on the basis of sexual orientation is violation of freedom of choice and expression (Article 19).

  • Restrain on State Action: Expression of intimacy is at the heart of right to privacy. Right to sexual orientation is a vital personal right falling within the private protective sphere and realm of individual choice and autonomy. The state has no business to intrude into these personal matters. This also includes right of persons of the community to navigate public places on their own terms, free from state interference.

  • Section 377 of the IPC: Observing it as “capricious and irrational”, the court said that

  • Section 377 fails to make a distinction between consensual and non-consensual sexual acts between competent adults making it manifestly arbitrary. This is violative of the right to equality that includes the right against arbitrariness.

  • Moreover, it does not take into account that consensual sexual acts between adults in private space are neither harmful nor contagious to society.

  • Rule of Law instead of Rule by the law: Court observed that Section 377 provides for rule by the law instead of the rule of law. The rule of law requires a just law which facilitates equality, liberty and dignity in all its facets. Rule by the law provides legitimacy to arbitrary state behaviour. Section 377 “infringed” on the fundamental right to non-discrimination, to live a life of dignity, and privacy guaranteed in the Constitution.

  • Constitutional morality: It must seek to make a society pluralistic and inclusive. Any attempt to impose a homogeneous, uniform, consistent and a standardised philosophy would violate constitutional morality. It is the responsibility of all three organs of the State to curb any propensity of popular sentiment or majoritarianism.

  • Against Majoritarianism: While rejecting the logic in Suresh Koushal case(2013) that the LGBTQI community forms only a tiny part of the population, the SC said that Constitution is not for just the majority, the fundamental rights are guaranteed to “any person” and “any citizen”, and the sustenance of these rights does not require majoritarian sanction.

  • Health aspect: Homosexuality is neither mental illness nor moral depravity. The SC quoted the Indian Psychiatric Society’s view that “homosexuality is not a psychiatric disorder”, and that same-sex sexuality is a normal variant of human sexuality, much like heterosexuality and bisexuality. Moreover India’s new mental illness law does not consider homosexuality to be a mental illness.

4.4. Analysis of the judgement

  • Court pronounced that LGBTQ possess full range of constitutional rights, including sexual orientation and partner choice, LGBTQ has equal citizenship and equal protection of laws. It will help in enforcing principles Current social acceptance of same-sex relationships

  • A study spanning 19 states by the Delhi-based Centre for the Study of Developing Societies (CSDS) in 2016 found strong views against homosexuality.

  • 61% of the respondents disapproved of homosexual relationship. Only a fourth of the respondents approved of a homosexual relationship.

  • The youngest respondents (15 to 17 years of age) were more approving of same-sex relationships than people in an older demographic. of social justice, based upon the importance of diversity and human rights.

  • Court has added a new test of constitutional morality to examine the constitutionality of laws enacted by Parliament. The verdict enlarges the scope of personal freedom by giving preference to constitutional morality over social morality.

  • Transformative constitutionalism, that is, treating the Constitution “dynamic, vibrant and pragmatic”, responsive to its citizens, and not a lifeless text.

  • Right to Sexual Health: The verdict News Hightlight both negative and positive obligations of the state to ensure the health and well-being of LGBTQ individuals.

  • Negative obligations amount to the state’s non-interference with the right to health.

  • Positive obligations entail access to health services and treatment facilities. It asks for sensitive counsellors and health workers “to help individuals, families, workplaces and educational and other institutions” to understand sexuality and foster equality, non-discrimination and a respect of human rights.

  • In addition, it would help efforts at HIV/AIDs prevention which was hindered due to stigma and fear of prosecution among homosexuals and transgender persons.

  • The SC also emphasised that attitudes and mentality have to change to accept the distinct identity of individuals and respect them for who they are rather than compelling them to become who they are not.

  • The SC urged the government to broadcast this judgement and organise public awareness campaign to eliminate stigma against LGBTQ people. Government officials, police, should be given periodic sensitisation campaigns.

  • The SC also apologised to the India’s LGBTQ people (lesbian, gay, bisexual, transgender, queer) and their families, for the delay in providing redressal for the ignominy and ostracism they have suffered.

4.5 Concerns yet to be addressed

  • Since the ruling would not be retrospective, so people convicted under Section 377 are left without any effective remedy. According to data from the National Crime Records Bureau (NCRB) between 2014 and 2016, there were 4,690 cases of persons being booked under Section 377.

  • Decriminalising gay sex is only the first step towards creating a more equal society. A 2016 survey by Mission for Indian Gay and Lesbian Empowerment (MINGLE) revealed one in five LGBT employees were discriminated against at the workplace. Such discrimination has economic costs too. A 2014 World Bank report said India loses $31 billion due to stigma and exclusion of the community.

  • Court judgments or laws cannot remove social prejudices on their own. The recent judgment on mob lynching is an example. India’s social and political groups will have to show the courage and will power to realise the judgement on ground.

  • Supreme Court judgment has merely decriminalised homosexuality but it has not altered the civil law/Personal laws on it. The validation of homosexual marriages, inheritance and adoption require legislation on which Parliament has to work.

5. National Database On Sexual Offenders

Background

  • Proposal to setup a national registry was mooted by the government after 2012 Nirbhaya gang-rape case.

  • The Criminal Law Act, 2018 provides for a national registry of sexual offenders.

  • Need for NDSO: There has been an overall rise in crimes against women from 3,29,243 in 2015 to 3,38,954 in 2016 with a 12% rise in cases of rape. It will help enabling justice and monitor an offender’s future behavior.

5.1 Features of NDSO

  • About online portal–cybercrime.gov.in:

  • Another portal – cybercrime.gov.in was launched by the government to receive complaints from citizens on objectionable online content related to child pornography, child sexual abuse material, and sexually explicit material such as rape and gang rape.

  • Cases in other countries:

  • Similar databases of sexual offenders are maintained in the USA, UK, Australia, Canada, Ireland, New Zealand, South Africa and Trinidad and Tobago.

  • In each of these countries the details of only convicted persons are entered and only USA makes the registry available to the public and communities.

  • Contains details of around 4.5 lakh people convicted of various sexual offences: It will include names and aliases, address, photograph, identifiers including PAN and AADHAAR, criminal history, fingerprints and palm prints among others of the people convicted under charges of rape, gang-rape, Protection of Children from Sexual Offences Act (POCSO) and of “eve-teasing”, from 2005 onwards.

  • Maintained by National Crime Records Bureau (NCRB): It will also track regular updation of records by the State Police.

  • Accessible only to Law Enforcement Agencies:

  • for the purpose of investigation and monitoring cases of sexual offences and employee verification.

  • Would not compromise any individual’s privacy: will have details of persons above 18 years of age and appeals against a conviction will have to be updated by state prisons. An accused can be tracked until an acquittal on appeal.

  • Help keep track of released convicts who have moved from one place to another: address concerns over sexual assaults in sensitive cases like Children’s shelter homes and increasing incidents of NRI grooms abandoning their brides.

5.2  Criticisms of the move

  • Neither serves as a deterrent nor help victims of sexual violence: In some western countries, there have been demands for a review of the decision of maintaining a registry due to this reason. Also, the data is already available in the CCTNS network and through NCRB annual crime reports, but it didn’t act as a deterrent.

  • In India most sex crimes are committed by a person known to the victim: As NCRB data of 2015 states that out of 34,651 reported rape cases, 33,098 were committed by people known to the victim, these victims might become reluctant to report the cases of sexual violence.

  • Details of the convict are not made open to public: thus, how this will affect general public is not known.

  • May create a stigma against the accused: there is a possibility that this registry may tarnish a person’s life forever even if he is reformed after serving his legal sentence.

 

Way Forward

  • Though this database could be a considerable step in tackling crime against women, its real utility would depend on how efficiently it is implemented and coordinated between various police agencies.

  • Simultaneously we urgently require police reforms to be implemented in spirit, breaking the unholy nexus between police and politicians.

  • We need to move towards an inquisitorial criminal justice system from present adversarial system to make it victim centric. Also, Fast Track Courts must be introduced especially for cases of sexual violence to have an effective deterrence.

  • Stringent punishment should also be introduced for those filing false complaints, to make the database effective.

6. Manual Scavenging

What is Manual Scavenging?

  • The International Labour Organisation defines it as the removal of human excreta from public streets and dry latrines, and cleaning septic tanks, severs and gutters.

6.1. Some facts on Manual Scavenging in India

  • The Census of India in 2011 established that more than 2.6 million dry latrines exist in India.

  • According to Census of India 2011, there are 740,078 households across the country where human excreta is removed by a person from a dry latrine.

  • In addition, the Socio-Economic Caste Census 2011 said that there are 182,505 families in rural India engaged in manual scavenging.

  • According to National Commission for Safai Karamcharis (NCSK) since January 1, 2017, one person has died every five days, on an average, while cleaning sewers and septic tanks across the country.

6.2. Legal Position on Manual Scavenging

  • Manual scavenging is prohibited by both international instruments, and Indian law. International agencies such as the UNICEF (as a water and sanitary issue), the WHO (as a health issue), the UNDP and the ILO have all called for an end to the practice.

  • India’s Constitution bans the practice of untouchability, and the Protection of Civil Rights Act, 1955, prohibits compelling anyone to practice manual scavenging.

  • Aimed specifically at ending manual scavenging, The Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 declared the employment of manual scavengers and construction of dry toilets to be punishable with fines and imprisonment.

  • Superseding the 1993 Act, the 2013 Act goes beyond prohibitions on dry latrines, and outlaws all manual excrement cleaning of insanitary latrines, open drains, or pits. And, importantly, it recognizes a constitutional obligation to correct the historical injustice and indignity suffered by manual scavenging communities by providing alternate livelihoods and other assistance.

  • However, despite such legal and constitutional safeguards, manual scavengers remain victims of discrimination. There are a number of reasons for this.

  • Firstly, sanitation being a State subject, it requires States’ support.

  • Secondly, the law requires that the rehabilitation of scavengers has to be carried out as per the existing schemes, even though these very schemes have not been successful in eradicating the practice in the past.

Related constitutional provisions:

  • The Constitution of India, in conformity with the international position, abolishes untouchability (Art. 17) and prohibits caste-based discrimination (Art. 15).

  • Under the Constitution human dignity is an inalienable right which is part of the fundamental right to life under Art. 21.

  • It is a universally recognized right, endorsed by the Universal Declaration of Human Rights by way of Articles 1, 22 and 23.

Current law on Manual Scavenging

  • The Parliament has enacted the ‘Prohibition of Employment as Manual Scavengers and their Rehabilitation Act 2013’.

  • It came into force on Dec 6th 2013 in whole of country, except Jammu & Kashmir.

  • It intends to o Eliminate the insanitary latrines.

  • Prohibit Employment as Manual Scavengers, Hazardous manual cleaning of sewers and septic tanks.

  • Survey of Manual Scavengers and their rehabilitation

  • The Act thus prohibits dry latrines and all kinds of manual cleaning of excrement as well as cleaning gutters, sewers, and septic tanks without protective gear.

  • Under section 8 of this Act, a person violating this will be punishable with imprisonment for up to two years or a fine of up to I2 lakh or both. For any subsequent violations, the imprisonment may extend up to five years and the fine can go up to I5 lakh or both.

  • The Act also has following provisions for the rehabilitation of the identified manual scavengers

  • An initial one-time cash assistance

  • Scholarship to the children of manual scavenger

  • Allotment of residential plot and financial assistance for house construction of a ready built house

  • Training in a livelihood skill with payment of stipend of at least Rs 3000 per month

  • Provision for subsidy, along with concessional loans, to at least one adult member of the family.

  • Thirdly, it is not just the law but the attitude of public authorities which aggravates the plight of the scavengers. The Government has repeatedly sought an extension of deadline to curb the problem, exhibiting lack of commitment.

6.3. Problems associated with Manual Scavenging

  • Every year, hundreds of manual scavengers die, asphyxiated by poisonous gases. According to data collated by the National Commission for Safai Karamcharis (NCSK) there have been 634 deaths related to manual scavenging since 1993, with Tamil Nadu reporting the highest number of such deaths at 194, followed by Gujarat 122, Karnataka 68 and Uttar Pradesh 51. The figure may change as the process of collecting details from states and updating the data is going on.

  • Manual scavenging is not only a caste-based but also a gender-based occupation with 90 per cent of them being women. Households with dry latrines prefer women to clean the excreta instead of men as they are located inside the house. According to a Human Rights Watch report, on an average, women get paid as little as between Rs 10 and Rs 50 every month per household. It is much less than men who earn up to Rs 300 a day for cleaning sewer lines.

  • Manual scavengers are exposed to the most virulent forms of viral and bacterial infections that affect their skin, eyes, and limbs, respiratory and gastro-intestinal systems.

  • The practice of caste-based exclusion and discrimination shows failure of access and entitlements not only to economic rights, but also to civil, cultural and political rights. It involves what has been described as “living mode exclusion”; exclusion from political participation and exclusion and disadvantage from social and economic opportunities.

  • A vicious cycle of poverty and social immobility- Undermined physical capacity and the feeling of vulnerability and hopelessness associated with this form of discrimination triggers a vicious cycle of impoverishment, low educational attainment, and social immobility for manual scavengers and their families.

Why it still Persists?

  • While legally manual scavenging is banned, caste apartheid and poverty perpetuate this practice.

  • Scavenging does not require any skill and provides some additional income with no competition, investment and risk.

  • These features coupled with the need for cleaning dry latrines and a lack of alternatives, force the scavengers, particularly women, to continue in this occupation.

  • Ministry of Social Justice and Empowerment is responsible for rehabilitation of manual scavengers and it implements the ‘Self Employment Scheme for Rehabilitation of Manual Scavengers’ (SRMS).

  • Ministry of Social Justice and Empowerment has associated reputed NGOs like Safai Karamchari Andolan, Rashtriya Garima Abhiyan, Sulabh International etc. for identification of manual scavengers and their rehabilitation.

  • It has also been found that in certain cases, scavengers also face a difficulty in taking up other occupations like running shops due to the prevailing social prejudices.

Way Forward

  • Immediate steps should include holding officials accountable for properly enforcing relevant laws, including the 2013 Act and The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

6.4 Technological Solutions to end manual scavenging

  • Hyderabad Municipality has deployed 70 mini jetting machines. These mini vehicles can have easy access to the narrow lanes and smaller colonies to clear the choked sewer pipes (drainages).

  • Bandicoot- India’s first ‘manhole cleaning robot’ is an exoskeleton robot which cleans manholes without the need for humans to enter the pit.

  • The Ministry of Social Justice and Empowerment is conducting a survey to identify manual scavengers. The first phase has identified 53236 manual scavenger across 12 states. There is a need to extend the survey to whole country and create a reliable database so as to extend benefits of 2013 Act to intended beneficiaries.

  • Recently Centre launched a challenge asking innovators,

  • NGOs, research institutions, companies and cities to propose technology and business solutions to clean urban sewers and septic tanks without human entry.

  • Dalits must be empowered through education and economic uplift. As per NCSK data, the Rs 10 lakh compensation that is mandated under law in case of manual scavenging deaths, has been paid in only 70 of the 123 cases since January 2017. Compensation should be paid immediately.

  • The Swachh Bharat Abhiyan should make expansion of the sewer network a top priority and come up with a scheme for scientific maintenance that will end manual cleaning of septic tanks to achieve its target of eradicating manual scavenging by 2019.

  • A determined approach to end this practice requires a campaign against social prejudice and caste based discrimination.

7. Ayushman Bharat - Pradhan Mantri Jan Arogya Yojana

Background

  • In the General Budget 2018-19, the Government announced a major initiative in health sector- Ayushman Bharat programme aimed at making path breaking interventions to address health holistically, in primary, secondary and tertiary care systems, covering both prevention and health promotion. Ayushman Bharat has 2 components-

  • Health and Wellness Centre: As envisioned in The National Health Policy, 2017, 1.5 lakh centres will provide comprehensive health care, including for non-communicable diseases and maternal and child health services. These centres will also provide free essential drugs and diagnostic services.

  •  National Health Protection Scheme: cover over 10 crore poor and vulnerable families (approximately 50 crore beneficiaries) providing coverage upto 5 lakh rupees per family per year for secondary and tertiary care hospitalization. Pradhan Mantri Jan Arogya Yojana is launched as this component.

7.1. Features of the Scheme

  • Beneficiary Identification: PMJAY primarily targets the poor, deprived rural families and identified occupational category of urban workers’ families, 8.03 crore in rural and 2.33 crore in urban areas as per the latest Socio-Economic Caste Census (SECC) data for both rural and urban areas as well as the active families under the Rashtriya Swasthya Bima Yojana (RSBY). There is no cap on family size and age as well as restriction on pre-existing conditions.

71st Round of National Sample Survey Organization (NSSO) has found

  • 85.9% of rural households and 82% of urban households have no access to healthcare insurance/assurance.

  • More than 17% of Indian population spend at least 10% of household budgets for health services.

  • Catastrophic healthcare related expenditure pushes families into debt, with more than 24% households in rural India and 18% population in urban area have met their healthcare expenses through some sort of borrowings.

Hospitalization cover from inpatient care to post hospitalization care:

  • The Yojana will provide a coverage up to Rs. 5,00,000 per family per year, for secondary and tertiary care hospitalization through a network of Empanelled Health Care Providers (EHCP). The services will include 1350 procedures covering pre and post hospitalization, diagnostics, medicines etc.

  • Universality: One unique feature of the PMJAY is its national portability once fully operational. The beneficiaries will be able to move across borders and access services across the country through the provider network seamlessly. The beneficiaries will not need a special card. Their Aadhaar numbers will suffice.

  • Implementation agency: The National Health Agency (NHA) will provide overall vision and stewardship for design, roll-out, implementation and management of Pradhan Mantri Jan Arogya Yojana (PM-JAY) in alliance with state governments.

  • Alliance with the States: The Scheme is principle based rather than rule based -

  • It allows enough flexibility to states in terms of packages, procedures, scheme design, entitlements as well as other guidelines while ensuring that key benefits of portability and fraud detection are ensured at a national level.

  • The States will have the option of implementing this scheme through a Trust model or Insurance Company based model, though the Trust model will be preferred.

  • States have the option to use an existing Trust/Society or set up a new Trust/Society to implement the Scheme as State Health Agency and will be free to choose the modalities for implementation.

  • Centre’s contribution being 60 per cent and the states’ 40 per cent.

  • For giving policy directions and fostering coordination between Centre and States, it is proposed to set up Ayushman Bharat National Health Protection Mission Council (AB-NHPMC) at apex level Chaired by Union Health and Family Welfare Minister.

  • IT based: In partnership with NITI Aayog, a robust, modular, scalable and interoperable IT platform will be made operational which will entail a paperless, cashless transaction.

  • Fraud detection and Data privacy: NHA Information Security Policy & Data Privacy Policy are being institutionalized to provide adequate guidance and set of controls on the secure handling of Beneficiaries Personal Data & Sensitive Personal Data in compliance with all laws and regulations applicable.

  • Pradhan Mantri Aarogya Mitra (PMAM): The scheme is creating a cadre of certified frontline health service professionals called Pradhan Mantri Aarogya Mitras (PMAMs) who will be primary point of facilitation for the beneficiaries to avail treatment at the hospital and thus, act as a support system to streamline health service delivery.

7.2. Significance of the PMJAY

  • Road to universal health coverage: According to NITI Aayog, the scheme would increase the public spending on health to around 4 per cent from approximately 1 per cent at present, thereby, dramatically improving provision of healthcare for the poor.

  • Catalyst for transformation: It will be an enabler of quality, affordability and accountability in the health system.

  • The empaneled hospitals have been tasked to follow the treatment guidelines. Patient outcomes will be monitored.

  • Another impact of the PMJAY will be rationalisation of the cost of care in the private sector. With an increase in demand created, it is expected that private sector will move from a low volume-high return paradigm to a high volume-fair return (and higher net profit) model.

  • The earnings of public hospitals under PMJAY will be available for their upgradation and also for incentivising the provider teams as these funds will be deposited with the Rogi Kalyan Samitis. Up to 30 per cent of the overall public spending on the scheme may return to public sector institutions.

  • Poverty-reducing measure: Each year, six to seven crore people, above the poverty line, fall below it because of health-related expenses. PMJAY would reduce this number significantly. More than a third of the out-of-pocket expenditure (around Rs 5,000 per household) is due to inpatient hospitalisations. One out of eight families have to incur health expenditure of more than 25 per cent of the usual household expenditure each year. PMJAY will ease this burden on the poor.

  • Employment Creation: The scheme will create lakhs of jobs for professionals and non-professionals — especially women. It will give a boost to the health technology industry.

  • NHPM will subsume the on-going centrally sponsored scheme “Rashtriya Swasthya Bima Yojana” (RSBY) and Senior Citizen Health Insurance Scheme (SCHIS).

  • Concerns ahead

  • NITI Ayog estimates Rs 12,000 crore will be required to run the scheme. However, allocation of just ₹2,050 crore during the current year to the PMJAY cannot provide the promised cover to the large population sought to be included. Not all States and Union Territories are in a position to raise their own share, and a few have not even joined the scheme. The challenge of funding, therefore, remains.

  • Health is a state subject under Indian constitution. State governments should regulate the hospital sector under the Clinical Establishments (Registration and Regulation) Act. The law broadly provides for standardisation of facilities and reasonable rates for procedures. Costs are a contested area between the care-providers and the Centre, and many for-profit hospitals see the government’s proposals as unviable.

  • Union government scheme covers only the deprived beneficiaries as per the caste census, thus bringing down the number of people to be covered. But many schemes implemented by states have a wider range of beneficiaries. For instance, Karnataka’s health insurance scheme covers all the residents of the state. This leads states hesitating adopting PMJAY.

  • Sustainability of insurance companies has to be ensured. According to the Insurance Regulatory and Development Authority of India’s data on incurred claims ratio (premium earned versus pay outs) for government-sponsored health schemes, it went up from 87 per cent in 2012-13 to 122 per cent in 2016-17. In case of PMJAY, the government has set a premium of Rs 1,050. Insurance companies find this amount very low to provide coverage. This would be more of an issue in states like Kerala where claims ratio is quite high.

  • Though hospital care is a big expenditure, it is still a very small percentage of people’s Out of Pocket (OoP) expenses on healthcare. People spend much more on illnesses that don’t need hospitalisation and are not covered under insurance. NSSO 2014 round shows there was no relief from increasing health expenditure w.r.t 2004.

  • Along with Insurance model focus must be on strengthening the country’s health infrastructure. It would have a long-term impact. Globally, countries with adequate public health facilities have been successful in implementing health insurance schemes. e.g. Thailand, extensively focused on strengthening the public health infrastructure before rolling out its Universal Coverage Scheme in 2001.

Conclusion:

  • The “best health care at the lowest possible cost” should be: inclusive; make health-care providers accountable for cost and quality; achieve a reduction in disease burden, and eliminate catastrophic health expenditures for the consumer. Ayushman Bharat – Pradhan Mantri Jan AarogyaYojana (AB-PMJAY) is a paradigm shift from sectorial, segmented and fragmented approach of service delivery through various national and State schemes to a bigger, more comprehensive and better converged and need based service delivery of secondary and tertiary care.

8. HIV/AIDS ACT, 2017

8.1 Problems faced by HIV Patients

  • Apart from the mental and physical trauma the HIV/AIDS patients go through, there are various problems that they face socially, like-

  • Stigma and Discrimination- Sometimes, people with HIV/AIDS are abandoned by their families and are forced to live in destitution, resulting in psychological devastation.

  • Social and Economic- The main social and economic impacts for people living with HIV are loss of labour or education due to illness and increased expense of healthcare and transport. The compounding of these impacts often leads to increased levels of poverty, food insecurity and nutrition problems.

Related Data

  • India has the third largest HIV-infected population with an estimated 2 million people. The country aims to decrease new infections by 75 per cent between 2010 and 2020 and eliminate AIDS by 2030.

  • National AIDS Control Organisation (NACO) noted that the rate of decline in annual new HIV infections has been relatively slower in recent years.

  • However, impact of the HIV/AIDS control programme has been significant, with more than an 80 per cent decline in estimated new infections from the epidemic’s peak in 1995

  • Estimated AIDS-related deaths declined by 71 per cent since its peak in 2005.

  • This called for legal recourse to protect the rights and interest of people suffering from HIV/AIDS.

8.2 Salient features of the Act

  • Prohibition of Discrimination- It lists various grounds on which discrimination against HIV positive persons and those living with them is prohibited. These include the denial, termination, discontinuation or unfair treatment with regard to employment, education, health care, residing or renting property, standing for public or private office, and insurance.

  • The requirement for HIV testing as a pre-requisite for obtaining employment or accessing health care or education is prohibited.

  • It prohibits individuals from publishing information or advocating feelings of hatred against HIV positive persons and those living with them.

  • Informed consent- No HIV-affected person can be subject to medical treatment, medical interventions or research without informed consent. Further, no HIV positive woman, who is pregnant, can be subjected to sterilisation or abortion without her consent.

  • Guidelines for testing centres- No HIV test shall be conducted or performed by any testing or diagnostic centre or pathology laboratory or blood bank, unless such centre or laboratory or blood bank follows the guidelines laid down for such test

  • Disclosure of HIV status- No person is compelled to disclose his HIV status except by an order of the court. A breach of violation attracts a jail sentence of up to two years or a fine of up to Rs 1 lakh, or both.

  • Every establishment is obligated to keep HIV-related information protected. Every HIV-positive person is compelled to take reasonable precautions to prevent the transmission of HIV to other persons.

  • Confidentiality of data- Every establishment keeping the records of HIV-related information of protected persons shall adopt data protection measures in accordance with the guidelines to ensure that such information is protected from disclosure

  • Central and State Government to take measures- The state and Centre shall take all such measures for prevention of spread of HIV or AIDS, in accordance with the guidelines and must make diagnostic facilities, anti-retroviral therapy and opportunistic infection management available to all HIV-infected people and ensure wide dissemination of the same.

  • Welfare Measures & protection of children- Apart from facilitating better access to welfare chemes to affected persons the government shall also take appropriate steps to protect the property of children affected by HIV or AIDS for the protection of property of child affected by HIV or AIDS.

  • A person between the age of 12 to 18 years who is mature in managing the affairs of his HIV or AIDS affected family shall be competent to act as a guardian of another sibling below 18 years of age.

  • Isolation of Person- It prohibits isolation of segregation of an HIV-positive person. Every HIV-positive person has the right to reside in a shared household and use facilities in a non-discriminatory manner.

  • Ombudsmen- Every state has to appoint one or more Ombudsmen to inquire into violations of the provisions of the Act. Within 30 days of receiving a complaint, the Ombudsman is required to pass an order as he deems fit. Failing to comply with the orders of the Ombudsman attracts a penalty of up to Rs 10,000.

  • However, it has been argued that the provisions only protect infected individuals from prejudiced behaviour and attitudes. Communities that are vulnerable to infection, individuals who are yet to be tested and kin of those infected are still subjected to stigma and biased perspectives. Further, there have been instances of shortage of medicines related to HIV/AIDS. 82

8.3 Other Steps taken by the Government

  • National Strategic Plan 2017-24 and Mission “SAMPARK”, to trace those who are Left to Follow Up and are to be brought under ART services.

  • Government launched a Central Sector Scheme - National AIDS Control Programme (NACP).

  • India has successfully achieved the 6th Millennium Development Goal (MDG 6) of halting and reversing the HIV epidemic.

  • For preventing HIV/AIDS transmission from mother to child o Prevention from Parent to Child Transmission (PPTCT) programme have been integrated with the RCH programme.

  • PALS (PPTCT ART Linkages Software) System has also been launched to maintain details of all HIV positive pregnant and breast-feeding women and their new-born babies.

  • Government would be implementing the 90:90:90 strategy as adopted by UNAIDS. It is a new HIV treatment that lays the groundwork to end the AIDS epidemic.

  • HIV Sensitive social protection portal has been launched to help officials and counsellors.

  • India has extended support to the African countries in their fight against HIV-AID which reflects India’s global commitment.

  • The need is to adopt a holistic approach to successfully combat discrimination against the infected and the vulnerable and create safe spaces for them.

  • The next important step will be public education as acceptance of HIV/AIDS patients in society is still a challenge.

  • A streamlined process of procurement and storage of medicines related to HIV/AIDS.

9. Program For International Student Assessment (Pisa)

Organisation for Economic Cooperation and Development

  • It is an intergovernmental economic organisation which aims to promote policies that will improve the economic and social well-being of people around the world.

  • It has 36 member countries and was founded in 1960 by 18 European nations plus the United States and Canada.

  • India is not a member of OECD.

  • Recently Ministry of Human Resource Development has decided to end the boycott of PISA formally.

More on News

  • India had stayed away from the assessment when it was ranked dismally low in 2012 and 2015 and 72nd among 74 countries in 2009.

  • India will send its officers to Paris to negotiate India’s terms of participation in 2021 with OECD as it has been realised that education is not about rote learning.

  • Unlike 2009, when Tamil Nadu and Himachal Pradesh were assessed, Union Government will request OECD to assess Chandigarh in 2021.

9.1. About PISA

  • It is an international assessment that measures 15 years old students’ reading, mathematics, science literacy and even innovative subjects like collaborative problem solving and money literacy every three years.

  • By design, PISA emphasizes functional skills that students have acquired as they near the end of compulsory schooling.

  • It was first conducted in 2000 and is coordinated by Organisation for Economic Cooperation and Development (OECD) and is conducted in the United States of America by NCES.

  • It assesses students in 80 countries and education system and helps to understand the education system and how it can be improved. The result is shown not individually but it shows a national mean score. Its goal is to provide outcomes of learning and not outcomes of schooling.

10. Swachhata Hi Seva Campaign

10.1 About the Campiagn

  • It is a (jan andolan) the second edition of the campaign launched in 2017, which aims at accelerating the vision for a Clean India.

  • Objectives of SHS o Accelerate the momentum of Swachh Bharat in the run-up to its 4th anniversary.

  • Re-energise the Swachh Bharat Jan Andolan and lay down the foundation of sustainability

  • Reinforce the concept of “Sanitation as everyone’s business”

  • Commence Mahatma Gandhi’s 150th birth year celebrations with a nationwide campaign

  • It also aims at engaging sharamdan activities with huge community mobilisation through grassroot swachhata champions such as woman sarpanches, students, film celebrities, sports persons etc.

  • The Campaign also aims to engage with media which has been playing crucial role in creating awareness about the Swachh Bharat Mission.

September Indian Society and Issues

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