Role of women and women’s organization, population and associated issues, poverty and developmental issues
Effects of globalization on Indian society, Social empowerment
General Studies 2
Issues relating to development and management of Social Sector/Services relating to Health
Development processes and the development industry the role of NGOs, SHGs, various groups and associations, donors, charities, institutional and other stakeholders
Medical Termination of Pregnancy Act
Health being a major issue of concern in India has areas like abortion and medical termination where lack of clarity and societal discourses that has resulted in many divergences. Especially abortions being a sensitive issue, pro-choice versus pro-life remain at the centre of an often acrimonious ethical, legal, theological and political debate across the world.
Pro-choice: are proponents who support choice of child bearer and hence support the cause of abortion at will.
Pro-life: are proponents who support life in consideration i.e. the foetus which is considered life from the women’s womb itself.
In India, pro-life versus pro-choice debates are confined primarily to academia, as the abortion narrative has been determined by the Medical Termination of Pregnancy (MTP) Act.
This pro-choice endowment was a need based public health strategy aimed at the alarming increase in the population growth before the 1970s.
It was also targeted towards preventing maternal deaths from illegal abortions, carried out by back-alley abortionists. India was the first country to launch a family planning programme in 1952.
The idea of this programme was to promote the use of contraceptives to delay or space out a pregnancy.
Whatever the family planning programme has tried over the years through different marketing strategies has only made a small dent.
Sterilisation remains the permanent method of contraception, after she or the family has decided on the desired number of children.
Unfortunately, legalised abortion has become a convenient standby, as a woman can cite contraceptive failure to abort an unwanted pregnancy.
Beyond the actual cases of true contraceptive failure, the easy access to abortion services has perhaps promoted a certain amount of irresponsibility, with women’s rights often over-riding discussions on the rights of the unborn child.
Misuse of Pro-choice:
The next saga in India’s abortion narrative was the mis-utilisation of the pro-choice endowment provided by the MTP Act.
Son-preference saw voiceless women being coerced to determine the sex of the baby. The upsurge of selective abortion of female foetuses was accompanied by an explosion of imaging technology.
Indian towns without life-saving healthcare services invariably have at least one ultrasound clinic.
The profusion of ultrasound clinics and sex-selective abortion hastened the decline of the sex-ratio. So alarming was the decline that the Pre-Conception and Pre-natal Diagnostic Techniques Act (PCPNDT) had to be legislated.
Pre-Conception and Pre-natal Diagnostic Techniques Act (PCPNDT)
The PCPNDT denunciated the use of ultrasound scans, and placed regulations that often superseded the medical utility of ultrasound during pregnancy.
For millions of women, the ultrasound revolution contributed to providing her one of the treasured moments during her pregnancy.
It provided an opportunity to see her growing baby. Nowhere were guidelines prepared for pre-test counselling, to prepare her for an adverse report when the ultrasound detected an abnormality in the baby.
Public Health Strategy:
In the evolution of the down-to-earth public health strategy on abortion in India, the rights of the unborn child emerge in the ethically disturbing and medically unresolved issue that a pregnancy cannot be terminated after 20 weeks.
The 20-week line is drawn on the understanding that there is a possibility of the foetus to survive and be viable outside the womb after this period.
The line is from Western data, and might be absolutely irrelevant to a woman in a remote area in India.
But this line places women in trouble, as it is not widely publicised. Few women and families are aware that a pregnancy cannot be terminated after this period, unless it is likely to threaten the life of the mother.
As a significant number of Indian women register late for ante-natal care, there is no option to terminate a pregnancy if something wrong is detected. In the same way, several birth defects are detected after 20 weeks.
Women are left unprepared for the consequences, frequently carrying a pregnancy to term, with the distressing knowledge that something could be wrong with the baby.
The benefits of the MTP Act to women in India are precious, but they have to be backed up with an appropriate socio-cultural and regulatory environment.
There is a need for aggressive education on planned parenthood, and on the risk that women undergo when they use abortion as a means of contraception.
Sonologists have to get together to ensure that counselling is provided to a mother before she undergoes a scan.
In the debate between choice and life it is important to emerge at a middle ground. Underlying all these initiatives has to be the primary message, that each pregnancy is a potential human being. Even as the provisions of the MTP Act have to be treasured by Indian women, it has to be used with responsibility and respect towards the unborn life.
Connecting the dots:
MTP act has been a prominent legislation w.r.t. women rights. But it has been plagued by its misuse. Critically analyse the need for a revision in the contemporary context.
General Studies 1
Effects of globalization on Indian society
General Studies 2
Bilateral, regional and global groupings and agreements involving India and/or affecting India’s interests
General Studies 3
Inclusive growth and issues arising from it.
Protecting the Tribal Rights
RKIA an Emirati investor, recently initiated an investment treaty arbitration (ITA) claim against India under the India-UAE Bilateral Investment Treaty (BIT).
It sought compensation of $44.71 million after claim arose after a MoU between Andhra Pradesh and RAKIA to supply bauxite to Anrak Aluminum Limited, in which RAKIA has 13% shareholding, was cancelled.
It is alleged that the concerns of the tribal population in those areas led to cancellation of the MoU.
Similarly, in 2014, Bear Creek Mining Corporation initiated an ITA against Peru under the investment chapter of the Canada-Peru Free Trade Agreement, claiming violation of the investment obligations due to the withdrawal of mining concessions, allegedly as a result of the protests by indigenous peoples.
These cases present an opportunity to evaluate the impact of the obligations of the host states under BITs on the rights of the tribal people.
A bilateral investment treaty (BIT) is an agreement establishing the terms and conditions for private investment by nationals and companies of one state in another state.
These types of investments are called FDIs.
BITs are established through trade pacts.
Most BITs grant investments made by an investor of one Contracting State in the territory of the other a number of guarantees, which typically include fair and equitable treatment, protection from expropriation, free transfer of means and full protection and security.
Criticism- NGOs have spoken against the use of BITs, stating that they are mostly designed to protect the foreign investors and do not take into account obligations and standards to protect the environment, labour rights, social provisions or natural resources.
Tribal protection under law
The United Nations Declaration on the Rights of Indigenous People (UNDRIP), 2007 recognises indigenous peoples’ rights to self-determination, autonomy and their right against forcible displacementand relocation from their lands or territories without free, prior and informed consent, among other things.
India has voted for in favour of this Declaration.
Also, there is International Labour Organisation (ILO) convention concerning Indigenous and Tribal Peoples, 1989. It is based on the “respect for the cultures and ways of life of indigenous peoples” and recognises their “right to land and natural resources and to define their own priorities for development.”
India is not a party to this convention but is a party to the ILO Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 1957. Incidentally, this convention is outdated and closed for ratification.
In India, the Constitution provides autonomy to tribal areas in matters of governance under the Fifth and Sixth Schedules.
It was further fortified by the Samatha v. State of Andhra Pradesh & Ors (1997) judgment where the Supreme Court declared that the transfer of tribal land to private parties for mining was null and void under the Fifth Schedule.
The framework for protection of the rights of tribal and indigenous people is further strengthened by the Recognition of Forest Rights Act, 2006. It protects the individual and community rights of tribal people in forest areas and their right to free and prior informed consent in event of their displacement and resettlement.
Business and investment promotion
Xaxa committee report 2014 has highlighted that though the protection of the rights of tribal people are in place, they are regularly flouted.
The state becomes more concerned about fulfilling contractual obligations towards the private investor instead of ensuring that tribals are not ousted from the land to which they are historically and culturally connected.
Hence, the state has been clearly flouting the constitutional and legal principles.
The evidence is in the fact that there have been increase in number of MoUs being signed by natural resources-endowed states with investors for facilitation of developmental projects.
For instance, till 2014, Chhattisgarh and Jharkhand have reportedly entered into 121 and 74 such MoUs, respectively, with various private players.
Thus, these kind of stands and actions alter the role of the state vis-à-vis the tribal people as the state prefers economic expediency at the cost of the rights of tribal people.
The states invite investments from domestic investors as well as foreign players whose interests are not only protected under domestic laws but also under the BITs.
The purpose of BITs is to give protection to foreign investors while imposing certain obligations on the host state.
For example, if a development project involving a foreign investor in tribal areas leading to acquisition of tribal land is met with protest, there may be two possible scenarios.
The State government due to socio-legal and political pressures may yield to the demand of the tribal people to the detriment of the foreign investor, which is what has happened in the case of RAKIA.
Or, assuming that the government continues with the project, the judiciary may order the cancellation of permits given to the foreign investor, which is what happened in the case of Vedanta in 2013.
In both the cases, foreign investors may drag India to ITA claiming violation of obligations under the BIT, such as fair and equitable treatment or indirect expropriation.
This perceived threat of ITA against the state may compel the latter to refrain from implementing tribal rights in the development project area.
A recent report of the UN Special Rapporteur on the Rights of Indigenous Peoples recognises three main reasons for serious impact that foreign investments have on the rights of indigenous people:
Failure to adequately address human rights issues of tribal people in BITs
The perceived threat of ITA for enforcement of investor protection
Exclusion of indigenous people from the policymaking process.
Economic development and protection of tribal rights have to happen together as both have equal importance in country’s development which is aimed at being inclusive.
Some suggestions that can be looked forward to are:
Including the tribal angle
None of the 80-plus BITs signed by India contains even a single provision on the rights of tribals. Even the 2015 model Indian BIT does not contain any such provision.
Thus, to avoid ITA cases by foreign investors, the government’s approach should be to include provisions relating to the protection of indigenous people in BITs.
Examples from world:
Canada has several exceptions to protect the rights of indigenous people in many of its BITs.
The Trans-Pacific Partnership agreement incorporates the rights of the Maoris from New Zealand also.
Since India is going to renegotiate its existing BITs, it should create a special exception for taking regulatory measures for protecting the rights of tribal people, in which case it should have a textual basis in the BITs to derogate from investment protection obligations under BITs.
The strengthening of BITs must go hand in hand with the implementation of domestic legislations for the protection of the rights of tribals, where the state does not consider tribals as impediments in the development process.
Involvement in policy making
Tribal people should be given representation even in investment policymaking.
This will help the state to bring in their concerns as well as development possibilities.
Connecting the dots:
Protecting tribal rights and driving investments for economic development require a balanced approach. Critically evaluate.
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