IAS UPSC Prelims and Mains Exam – 6th August 2019

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(PRELIMS + MAINS FOCUS)

Surrogacy (regulation) bill, 2019

Part of: Mains GS- I – Society – Women issues 

In News

• Lok Sabha has passed the Surrogacy (Regulation) Bill, 2019 that prohibits commercial surrogacy, but allows altruistic surrogacy.
• Surrogacy: Surrogacy is a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
• Commercial Surrogacy: It refers to any surrogacy arrangement in which the surrogate mother is compensated for her services beyond reimbursement of medical expenses.
• Altruistic Surrogacy: In this a woman volunteers to carry a pregnancy for intended parents without receiving any monetary compensation in return. Most altruistic surrogacies are between family members or close friends. 
• The bill provides for constituting a National Surrogacy Board, State Surrogacy Boards, and the appointment of appropriate authorities for the regulation of the practice and process of surrogacy.
• The offences under the Bill include undertaking or advertising commercial surrogacy, exploiting the surrogate mother and abandoning, exploiting or disowning a surrogate child.

Do you know?

• India has emerged as a hub for surrogacy in recent years with 2000 to 3000 surrogacy clinics running illegally in the country. 
• Commercial surrogacy is banned and considered illegal in many countries including New Zealand, the United Kingdom, China, South Africa, Spain, and Switzerland.

Draft national resource efficiency policy

Part of: GS Prelims and Mains GS III – Environment Conservation

In News

• The Ministry of Environment, Forests and Climate Change has proposed a draft National Resource Efficiency Policy 2019 which aims to streamline the efficient use of these resources with minimum negative impact on environment.
• The draft policy comes in the backdrop of India increasing its material consumption to six times from 1.8 billion ton in 1970 to 7 billion ton in 2015.
• Aim: to minimize this inherent cost of economic growth on the natural environment by transforming country’s waste management sector into a secondary resource recovery sector.
• National Resource Efficiency Authority (NREA) will be set up whose mandate will be developing and implementing resource efficient strategies for material recycling, reuse and land-filling targets for various sectors and set standards for reuse of secondary raw materials
• NERA would be supported by an Inter-Ministerial National Resource Efficiency Board to guide on the aspects critical to its implementation.
• Other measures include tax benefits on recycled materials, green loans to small and medium Enterprises (SMEs) and soft loans to construct waste disposal facilities, apart from setting up Material Recovery Facilities (MRF)

Do you know?

• India’s resource extraction of 1580 tonnes/acre is much higher than the world average of 450 tonnes/acre, while material productivity remains low.
• The country’s recycling rate is just about 20-25% compared with 70% in developing countries in Europe.

Resource Assistance for Colleges with Excellence (RACE)

Part of: GS Prelims and Mains GS II- Issue relating to Education

In News

• Rajasthan government has launched a new higher education model titled Resource Assistance for Colleges with Excellence.
• This model is utilized for distribution of faculties and movable assets among the government colleges at the district level to rationalise the availability of resources. 
• The model will create a pool for sharing of facilities which will benefit the colleges lacking infrastructure.
• The colleges in need will submit their requirement to the nodal college in the district, which will send the teachers on deputation, if needed, and provide the facilities such as projectors, digital libraries, equipment and technicians.
• RACE will give autonomy to small colleges and help them find solutions to their problems at the local level.

(MAINS FOCUS)

JAMMU AND KASHMIR/ARTICLE 370

TOPIC: General Studies 2

• Social Justice
• Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

Article 370

Context 

• Jammu and Kashmir has lost its special status, and reduced to two Union Territories
• Special status was withdrawn by invoking the same Article 370 which had been seen as firewalling the autonomy of Jammu and Kashmir. 

What is the significance of Article 370?

• The most important feature of federalism in the United States was the “compact” between the 13 erstwhile British colonies that constituted themselves first into a confederation and then into a federal polity under the country’s 1791 constitution. 
• India’s Supreme Court in State of West Bengal v. Union of India (1962) attached the highest importance to an “agreement or compact between states” as an essential characteristic of federalism. 
• In SBI (2016), the apex court accepted the presence of this compact for Kashmir. 
• Article 370 was an essential facet of India’s federalism because, like the compact in the United States, it governed the relationship of the Union with Jammu and Kashmir. 
• The Supreme Court has held federalism to be part of the basic structure of India’s Constitution
• The original draft of Article 370 was drawn up by the Government of Jammu and Kashmir.
• A modified version of the draft was passed in the Constituent Assembly of India on May 27, 1949. Moving the motion, N Gopalaswami Ayyangar said that if the accession was not ratified by a plebiscite, “we shall not stand in the way of Kashmir separating herself away from India”.
• On October 17, 1949, Article 370 was included in India’s Constitution by the Constituent Assembly. Some critics of Article 370 have argued earlier that Kashmir joined India in 1947 without any conditions, and Article 370 unnecessarily gave it special status. 
• However, the drafting of the Constitution ended on November 26, 1949 — Article 370 had been included before the Constitution was adopted.

What did the Instrument of Accession say?

• The Indian Independence Act, 1947, divided British India, i.e., the territories under the direct administration of the British, into India and Pakistan. 
• The 580-odd princely states that had signed subsidiary alliances with the British had their sovereignty restored to them, and were given the options of remaining independent, joining the Dominion of India, or joining the Dominion of Pakistan. 
• Section 6(a) of the Act said joining either India or Pakistan would have to be through an Instrument of Accession. 
• States could specify the terms on which they were joining one of the new dominions. Technically, therefore, the Instrument of Accession was like a treaty between two sovereign countries that had decided to work together. 
• The maxim of pacta sunt servanda in international law, which governs contracts or treaties between states, asks that promises must be honoured. 
• Monday’s Presidential Order under Article 370 is a negation of the constitutional pact that India signed with Maharaja Hari Singh.
• The Maharaja, the Hindu king of a Muslim-majority state, had initially wanted to stay independent. He signed the Instrument of Accession on October 26, 1947, after Afridi tribesmen and Pakistan Army regulars invaded the state, and India agreed to help only after he acceded. 
• The Schedule appended to the Instrument of Accession gave the Indian Parliament power to legislate for Jammu and Kashmir on only defence, external affairs and communications.
• Article 370 was a constitutional recognition of the conditions mentioned in the Instrument of Accession, and reflected the contractual rights and obligations of the two parties.

But wasn’t Article 370 just a temporary provision?

• Article 370 is the second Article of Part XXI of India’s Constitution, which is titled “Temporary, Transitional and Special Provisions”. Article 370 was temporary in the sense that the Constituent Assembly of Jammu and Kashmir was given the right to modify/delete/retain it. The Constituent Assembly of Kashmir decided in its wisdom to retain it.
• The other view was that it was “temporary” until a plebiscite had been held to ascertain the wishes of the people of Jammu and Kashmir. In a written reply to Parliament last year, the government had said there was no proposal to remove Article 370.
• In Kumari Vijayalakshmi Jha vs Union Of India (2017), Delhi High Court rejected a petition that argued that Article 370 was temporary, and that its continuation was a fraud on the Constitution.
• In April 2018, the Supreme Court said that the word “temporary” in the headnote notwithstanding, Article 370 was not temporary.
• In Santosh Kumar (2017), the apex court said that due to historical reasons, Jammu and Kashmir had a special status.
• The Supreme Court in SBI v Zaffar Ullah Nehru (2016) observed that the federal structure of the Constitution is reflected in Part XXI. The court also said that J&K has a special status, and that Article 370 was not temporary. The court referred to Article 369 of Part XXI that specifically mentions the period of five years; no time limit is mentioned in Article 370. The court observed that Article 370 cannot be repealed without the concurrence of the Constituent Assembly of Jammu and Kashmir.
• In Prem Nath Kaul (1959), a five-judge Bench of the Supreme Court observed that Article 370(2) shows that the continuance of the exercise of powers conferred on Parliament and the President by the relevant temporary provisions of Article 370(1) is made conditional on the final approval of the Constituent Assembly of Jammu and Kashmir.
• In Sampat Prakash (1968), the apex court decided that Article 370 could be invoked even after the dissolution of the Constituent Assembly of Jammu and Kashmir. “Article 370 has never ceased to be operative,” the five-judge Bench said.

Has Article 370 been scrapped?

• The Constitution (Application to Jammu and Kashmir) Order, 2019, issued by President Ram Nath Kovind “in exercise of the powers conferred by Clause (1) of Article 370 of the Constitution”, has not abrogated Article 370. 
• While this provision remains in the statute book, it has been used to withdraw the special status of Jammu and Kashmir. 
• The Presidential Order has extended all provisions of the Indian Constitution to Jammu and Kashmir. It has also ordered that references to the Sadr-i-Riyasat of Jammu and Kashmir shall be construed as references to the Governor of the state, and “references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers”. 
• This is the first time that Article 370 has been used to amend Article 367 (which deals with Interpretation) in respect of Jammu and Kashmir, and this amendment has then been used to amend Article 370 itself.

What is the status of Article 35A now?

• Article 35A stems from Article 370, and was introduced through a Presidential Order in 1954. Article 35A does not appear in the main body of the Constitution — Article 35 is followed by Article 36 — but appears in Appendix I. Article 35A empowers the Jammu and Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.
• Presidential Order has extended all provisions of the Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights. 
• Therefore, the discriminatory provisions under Article 35A are now unconstitutional. The President may also withdraw Article 35A. 

What has changed in Jammu and Kashmir?

• The state of Jammu and Kashmir will now cease to exist; it will be replaced by two new Union Territories: Jammu and Kashmir, and Ladakh. UTs have become states earlier; this is the first time that a state has been converted into a UT. The UT of Jammu and Kashmir will have an Assembly, like in Delhi and Puducherry.
• Not only has Jammu and Kashmir lost its special status, it has been given a status lower than that of other states. Instead of 29, India will now have 28 states. Kashmir will no longer have a Governor, rather a Lieutenant Governor like in Delhi or Puducherry.

Can the Presidential Order be challenged in the Supreme Court? On what grounds?

• It will most likely be challenged. However, the Supreme Court will consider that Article 370 does, indeed, give sweeping powers to the President. It might also take two to three years for a Constitution Bench of the court to decide such a challenge.
• The possible grounds of challenge could include the argument that the conversion of Jammu and Kashmir into a Union Territory is in violation of Article 3, as the Bill was not referred by the President to the state Assembly. Also, can the Constituent Assembly mean Legislative Assembly? Are the Governor and the state government one and same?
• The constitutional relevance of Instrument of Accession will also be examined by the court. Whether Article 370 was part of the basic structure will likely be considered. The use of Article 367 in amending Article 370 will also be examined.

How would the status of J&K as a Union Territory (and Ladakh too as a non-legislature UT) affect the governance of these States?

• There are two models – Puducherry and the National Capital Territory of Delhi – which can guide the proposed Legislative Assembly of Jammu and Kashmir on becoming a Union Territory. 
• While the former seems to be having no restriction with regard to framing laws on police, public order and land, the latter is specifically barred from making laws on the three subjects. 
• It was through an enabling provision – 239 A – that the Puducherry legislature was formed, whereas, in the case of Delhi, the provision – 239AA – spells out the contours of powers of the legislature and council of ministers.
• In respect of Ladakh, where there is no Legislative Assembly, the role of the Administrator or Lt. Governor will be greater than that of Jammu & Kashmir. His source of authority is the President.

Conclusion:

• Article 370 is the bedrock of the constitutional relationship between Jammu and Kashmir and the rest of India.
• It has been described as a tunnel through which the Constitution is applied to J&K.
• India has used Article 370 at least 45 times to extend provisions of the Indian Constitution to J&K. This is the only way through which, by mere Presidential Orders, India has almost nullified the effect of J&K’s special status
• Thus, the move is bound to have a significant impact on the demography, culture, and politics of J&K.

Connecting the dots:

1. Discuss the history of Article 370?
2. Violence, terrorism, and killings are never the answer – be it on any side. What do you think?
3. Discuss government’s strategy towards handling the Kashmir issue. 

WOMEN/ HEALTH

Topic: General studies paper 2

• Issues relating to development and management of Social Sector/Services relating to Health, Education, Human Resources.
• Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

The Surrogacy (Regulation) Bill, 2019

CONTEXT:

• The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and Family Welfare,
• The Bill defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.

Regulation of surrogacy: 

• The Bill prohibits commercial surrogacy, but allows altruistic surrogacy.  
• Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.
• Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

Purposes for which surrogacy is permitted:

 Surrogacy is permitted when it is: 

• For intending couples who suffer from proven infertility
• Altruistic
• Not for commercial purposes
• Not for producing children for sale, prostitution or other forms of exploitation; and 
• For any condition or disease specified through regulations.

Eligibility criteria for intending couple: 

The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority. 

A certificate of essentiality will be issued upon fulfilment of the following conditions: 

• A certificate of proven infertility of one or both members of the intending couple from a District Medical Board
• An order of parentage and custody of the surrogate child passed by a Magistrate’s court; and 
• Insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.

The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions: 

• The couple being Indian citizens and married for at least five years
• Between 23 to 50 years old (wife) and 26 to 55 years old (husband); 
• They do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness; and 
• Other conditions that may be specified by regulations

Eligibility criteria for surrogate mother: 

To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be: 

• A close relative of the intending couple; 
• A married woman having a child of her own; 
• 25 to 35 years old; 
• A surrogate only once in her lifetime; and 
• Possess a certificate of medical and psychological fitness for surrogacy.  Further, the surrogate mother cannot provide her own gametes for surrogacy.

Appropriate authority:

 The central and state governments shall appoint one or more appropriate authorities within 90 days of the Bill becoming an Act. 

 The functions of the appropriate authority include; 

• Granting, suspending or cancelling registration of surrogacy clinics; 
• Enforcing standards for surrogacy clinics; 
• Investigating and taking action against breach of the provisions of the Bill; 
• Recommending modifications to the rules and regulations

Registration of surrogacy clinics: 

• Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority.  Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority. 

National and State Surrogacy Boards:

 The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively.

 Functions of the NSB include, 

• Advising the central government on policy matters relating to surrogacy; 
• Laying down the code of conduct of surrogacy clinics; and 
• Supervising the functioning of SSBs.

Parentage and abortion of surrogate child:

 A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.  An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority.  This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971.  Further, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.

Offences and penalties:

• The offences under the Bill include: 
• Undertaking or advertising commercial surrogacy; 
• Exploiting the surrogate mother; 
• Abandoning, exploiting or disowning a surrogate child; and 
• Selling or importing human embryo or gametes for surrogacy.  
• The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.  The Bill specifies a range of offences and penalties for other contraventions of the provisions of the Bill.

 Laws Governing Surrogacy in Different Countries

While countries like Britain, America, Australia, the Netherlands and Denmark are among those where altruistic surrogacy is legal, countries such as France, Germany, Italy, Spain, Portugal and Bulgaria prohibit all forms of surrogacy.

• Armenia, Georgia, Kazakhstan, Russia, Ukraine allow both altruistic and commercial surrogacy.
• Kenya, Malaysia and Nigeria do not prohibit surrogacy but have no formal law to regulate the practice.
• The Czech Republic, Colombia, Chile and Hungary are among countries with unregulated surrogacy.

In Britain

• Commercial Surrogacy is not legal in the United Kingdom.
• The surrogate is the child’s legal parent at birth. Legal parenthood can be transferred by parental order or adoption only once the child is born.

In USA

• The surrogacy laws vary from state to state.
• Surrogacy friendly states allow both commercial and altruistic surrogacy. Arkansas, California, New Hampshire are some such surrogacy-friendly states.
• New York does not allow commercial surrogacy and Michigan forbids absolutely all surrogacy agreements.

In Canada

• Canada’s Assisted Human Reproduction Act permits only altruistic surrogacy.
• Surrogate mothers may be reimbursed only for approved expenses.
• However, all surrogacy arrangements are illegal in Quebec in Canada.

Conclusion:

• The Surrogacy (Regulation) Bill 2019 cements the ban on commercial surrogacy, but it fails to effectively tackle the larger social, physical, psychological, emotional and economic issues that continue to challenge the welfare and safety of both the surrogate mother and the child.
• Just the removal of the commercial aspects in the current surrogacy arrangements does not remove the chances of exploitation. So the rights of surrogate mother and child born must comprehensively be formulated, along with that ART must be regulated thoroughly.

Connecting the dots:

1. Discuss the provisions and challenges of surrogacy regulation bill 2019.

(TEST YOUR KNOWLEDGE)

Model questions: (You can now post your answers in comment section)

Note: 

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Q.1) Consider the following statements about Surrogacy

1. Surrogacy is a process of fertilisation where an egg is combined with sperm outside the body, in laboratory conditions
2. Recently a bill has been passed in Lok Sabha which provides for blanket ban on Surrogacy in India

Which of the statement(s) given above is / are correct?

1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2

Q.2) Consider the following statements

1. India’s resource extraction of 1580 tonnes/acre is much higher than the world average of 450 tonnes/acre, while material productivity remains low.
2. The country’s recycling rate is just about 20-25% compared with 70% in developing countries in Europe.

Which of the statement(s) given above is / are correct?

1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2

Q.3) Which state has launched Resource Assistance for Colleges with Excellence (RACE) for distribution of faculties and movable assets among the government colleges ?

1. Delhi
2. Rajasthan
3. Madhya Pradesh
4. Kerala

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