18 OCTOBER 2023

1. Lok Sabha Ethics Committee

Why in news: Lok Sabha Speaker referred an MP’s complaint to the House Ethics Committee, the panel is set to swing into action again.

Committee on Ethics

• Members:
  • This Committee consists of 15 Members nominated by the Speaker.
• Term:
  • The term of the Committee is one year.
• Function:
  • Its function is to examine every complaint relating to unethical conduct of a Member of Lok Sabha referred to it by the Speaker and make such recommendations as it may deem fit and formulate a code of conduct for Members and suggest amendments or additions to the code of conduct from time to time
• Have action been taken in the past on its recommendations?
  • In 2005, 11 MPs were expelled in the infamous cash-for-query scam based on the report of the P K Bansal Committee..
• Origin of the committee in Rajya Sabha:
  • A Presiding Officers’ Conference in Delhi in 1996 first mooted the idea of ethics panels for the two Houses of Parliament.
  • Vice President and Rajya Sabha Chairman K R Narayanan constituted the Upper House’s Ethics Committee in 1997.
  • The purpose was to oversee the moral and ethical conduct of members and examine cases of misconduct referred to it.
  • The Rules applicable to the Committee of Privileges also apply to the ethics panel.
• Origin of the committee in Rajya Sabha:
  • A study group of the Committee of Privileges of the Lok Sabha visited Australia, the UK, and the US in 1997 to look into practices pertaining to the conduct and ethics of legislators.
  • It drafted a report for the constitution of an Ethics Committee but the Lok Sabha was dissolved before the report could be laid on the table.
  • It was tabled in the 12th Lok Sabha but before the Committee of Privileges could take a view on it, the Lok Sabha was again dissolved.
  • The Committee of Privileges finally recommended the constitution of an Ethics Committee during the 13th Lok Sabha.
  • Late Speaker G M C Balayogi constituted an ad-hoc Ethics Committee in 2000 and it became a permanent part of the House only in 2015.
• How it works:
  • Any person can complain against a member through another Lok Sabha MP along with all evidence of misconduct and an affidavit stating that the complaint is not false, frivolous or vexatious.
  • A member, too, can complain against another member with evidence without any need for an accompanying affidavit.
  • The Committee does not entertain complaints based only on media reports or on sub-judice matters.
  • The Speaker can refer to the committee any complaint against an MP.
  • The committee makes a prima facie enquiry before deciding to examine a complaint and after the evaluation of the complaint makes its recommendations.
  • The committee report is presented to the Speaker who asks the House if the report should be taken up for consideration.
  • There is also a provision for a half-an-hour discussion on the report.

How it differs from the Privileges Committee?

• The work of the Ethics Committee and the Privileges Committee often overlap.
• A corruption allegation against an MP can be sent to either body as it involves an accusation of serious breach of privilege and contempt of the House.
• The mandate of the Committee of Privileges is to safeguard the freedom, authority and dignity of Parliament.
  • These privileges are enjoyed by individual members as well as the House as a collective.
  • Thus, while MPs can be examined for breach of privilege on corruption charges, a person who is not an MP can also be accused of breach of privilege for actions that attack the authority and dignity of the House.
• In the case of the Ethics Committee, however, only an MP can be examined for misconduct.

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2. India’s ambitious space goals

Why in news: Prime Minister of India has directed the Department of Space to aim at setting up ‘Bharatiya Antariksha Station’ (Indian Space Station) by 2035 and send the first Indian to the Moon by 2040.

Key details:

• Artemis programme:
  • India is a member of the Artemis program, an international effort to return humans to the moon and establish a sustainable presence there.
• Chandrayaan-3:
  • India‘s space ambitions got a boost when it became the first country to land a spacecraft near the unexplored south pole of the moon, just days after a similar Russian mission failed, and the fourth overall to achieve a soft landing.
• Aditya L-1:
  • India launched a rocket to study the sun and is scheduled conduct a test as part of its crewed space mission.
• Crew Module (CM) system:
  • The Crew Module will house the astronauts in a pressurised earthlike atmospheric condition during the Gaganyaan mission.
  • For the Test Vehicle Abort Mission-1 (TV-D1), the Crew Module is an unpressurised version that has completed its integration and testing and is ready to be shipped to the launch complex.
• Shukrayaan-1 Mission:
  • The Indian Space Research Organisation (ISRO) is preparing to embark on a bold new mission to Venus.
  • Dubbed Shukrayaan-1, this mission will unravel the mysteries of this fiery sister planet and shed light on its potential habitability.

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3. The Vizhinjam port project

Why in news: A war of words was sparked between the ruling party and Opposition party over the origin of the project.

About the Vizhinjam International Seaport Project

• The transshipment deepwater multipurpose seaport project is being built by Adani Ports and SEZ Private Limited on a design, build, finance, operate and transfer (DBFOT) model.
• The Kerala government gave 500 acres of land.
• The DBFOT deal is for 40 years, with provisions extending for 20 years.
• Vizhinjam would be India’s first international deepwater transshipment port with a natural depth of more than 18 meters, scalable up to 20 meters, which is crucial to get large vessels and mother ships.
• It is designed to cater to container transshipment, multi-purpose, and break-bulk cargo.
• The port is located ten nautical miles from the international shipping route.
• Other features include minimal littoral drift along the coast and virtually no requirement for any maintenance dredging.
• The port is expected to compete with Colombo, Singapore, and Dubai for winning trans-shipment traffic.
• Its capacity in the first phase is one million TEU, which can be increased to 6.2 million TEU.
• The project is expected to generate 5,000 direct job opportunities, apart from giving a boost to an industrial corridor and cruise tourism.
• Vizhinjam port offers large-scale automation for quick turnaround of vessels with state-of-the-art infrastructure to handle Megamax container ships.

Need for a container transshipment port

• India has 13 major ports.
• However, the country lacks a landside mega-port and terminal infrastructure to deal with ultra-large container ships.
• Hence, nearly 75 per cent of India’s transshipment cargo is handled at ports outside India, mainly Colombo, Singapore, and Klang.
• In fiscal 2021-22, the total transshipment cargo of India was about 4.6 million TEUs (twenty-foot equivalent units), out of which about 4.2 million TEUs were handled outside India.
• Primary benefits of developing a port into a Transshipment Hub:
  • forex savings,
  • foreign direct investment,
  • increased economic activity at other Indian Ports,
  • development of related logistics infrastructure,
  • employment generation,
  • improved operation/logistics efficiencies and
  • increase in revenue share.
• Other benefits:
  • Several other allied businesses viz. ship chandlery-ship supplies, ship repair, crew change facility, logistics value-added services, warehousing and bunkering also come up at the transshipment port.
  • The cost of movement of containers to and from foreign destinations is likely to come down.
  • A deepwater container transshipment port can attract a large share of the container transshipment traffic which is now being diverted to Colombo, Singapore and Dubai.
  • It can also ensure India’s economic development and open up immense job opportunities.

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4. Delhi excise policy case

Why in news: The Enforcement Directorate (ED) told the Supreme Court on Monday that it is contemplating adding the Aam Aadmi Party (AAP) as an accused in its money laundering probe linked to the Delhi government’s now-scrapped excise policy.

What was the Delhi Excise policy case?

• The Excise policy came into force in 2021.
• The policy was aimed at increasing government revenues and also ending the liquor mafia’s influence and black marketing.
• Under the new policy, open bidding was conducted for 849 liquor vends which were awarded to private companies.
• The city was divided into 32 zones, each allotted a maximum of 27 vends.
• There were no individual licences and the bidding was done zone-by-zone.
• The city government’s role in the liquor business ended with the new excise policy.
• The government was left with no control over the sale of liquor in the capital.
• While the government said the policy would lead to equal distribution of liquor vends in the city, several social, educational and religious groups weren’t happy with it.
• The policy was rolled back in July 2022 and the old liquor policy came into force once again. 

How was Delhi’s new excise policy different from the existing policy?

• The policy envisaged the exit of the state from the liquor business to allow it to reach its full potential.
• The stated goal of the policy was to shut down black marketing and the liquor mafia, increase revenue, improve the consumer experience, and ensure equitable distribution of liquor vends across the capital.
• The licensees were allowed to offer discounts and set their own prices instead of selling at the MRPs fixed by the government.

What is the controversy?

• The controversy over the liquor policy started when allegations started swirling that the AAP government used the policy to extend undue financial favours to the liquor licensees, much after the tenders had been awarded, thus causing huge losses to the exchequer.
• The CBI is probing allegations that the liquor policy gave undue advantages to private retailers.
• The CBI also says that corruption in the matter goes to the “highest levels” in Delhi government.
• It has claimed crores in kickbacks were paid for favours in the policy and the funds were used by the AAP for its election campaign in Goa last year.

How did the ED come into the picture?

• The ED told a court that the alleged proceeds of crime amounted to more than Rs 292 crore, and that it was necessary to establish the modus operandi.
• The ED alleged that the scam was to give the wholesale liquor business to private entities and fix a 12% margin, for a 6% kickback.
• In its first prosecution complaint in 2021, the ED said the policy was formulated with deliberate loopholes that promoted cartel formations through the back door to benefit AAP leaders.
• The ED also alleged that AAP leaders received kickbacks to the tune of Rs 100 crore from a group of individuals identified as the South Group, who secured uninhibited access to various wholesale businesses and retail zones in violation of rules.

What is the law under which a political party can be booked for money laundering?

• Section 70 of the stringent Prevention of Money Laundering Act deals with offences by companies.
• While a political party is not a ‘company’ incorporated under the Companies Act, 2013, the provision has a crucial explanation that could bring a political party under the ambit of the anti-money laundering law.
• As per the provision company means any body corporate and includes a firm or other association of individuals.
• The phrase ‘association of individuals’ can include a political party.
• A party, according to Section 29A of the Representation of the People Act, is any association or body of individual citizens of India calling itself a political party.

About the PMLAPrevention of Money Laundering Act, 2002 was enacted to fight against the criminal offence of legalizing the income/profits from an illegal source.The Prevention of Money Laundering Act, 2002 enables the Government or the public authority to confiscate the property earned from the illegally gained proceeds.Any person who directly or indirectly:Attempts to indulge.Assists the person who is actually involved in any process is a party to the activity connected with the proceeds of crime.The Act was formulated for the following objectives:Prevent money-laundering.Combat/prevent channelising of money into illegal activities and economic crimes.Provide for the confiscation of property derived from, or involved/used in, money-laundering.Provide for matters connected and incidental to the acts of money laundering.Actions that can be initiated against persons involved in ML:Seizure/freezing of property and records and attachment of property obtained with the proceeds of crime.Any person who commits the offence of money laundering shall be punishable with –Rigorous imprisonment for a minimum term of three years and this may extend up to seven years.Fine (without any limit).

Has a political party ever been booked for money laundering?

• If AAP is directly named as an accused in the excise scam under the PMLA, it would be the first instance of a political party being accused of money laundering.
• However, political parties have been booked and investigated under the Income Tax Act.

What are the options for Election Commission if AAP is named as an accused?

• The Enforcement Directorate’s (ED) proposal in the Supreme Court to name the Aam Aadmi Party (AAP) as an accused in the Delhi excise policy case will place the Election Commission (EC) in uncharted territory as there’s no prescription in the electoral rules and laws on what should be done when a political party is accused of any illegality.
• In terms of punitive action against a party, the options available to the Commission are rather limited.
• The options available to the EC are:
  • Withdrawal of party’s recognition:
    • The EC is, at best, empowered to suspend or withdraw a party’s recognition under The Election Symbols (Reservation and Allotment) Order.
    • The Symbols Order clearly outlines the grounds on which the Commission can take such action against a party.
    • It’s when the party fails to observe the Model Code of Conduct or doesn’t follow the orders and instructions of the Commission.
    • There’s nothing on what should happen if the party is accused of illegality.
    • Just being an accused doesn’t amount to anything.
    • Even MPs and MLAs are disqualified only when they are convicted of an offence.
  • De-registering:
    • The second punitive option before the Commission is to de-register a party.
    • But this is an extremely limited option.
    • While Section 29A of The Representation of the People Act, 1951, empowers the EC to register a party, it can review its decision only under three exceptions.
      • First, if the party has obtained its registration by fraud.
      • Second, if the party informs the EC that it has ceased to have faith and allegiance to the Constitution of India or to the principles of socialism, secularism and democracy or it will not uphold the sovereignty, unity and integrity of India.
      • Third, if the party is declared unlawful by the Union Government under the provision of the Unlawful Activities (Prevention) Act, 1967 or any other similar law.
    • So if AAP were to be named or even convicted under the PMLA, The Representation of the People Act has no provision to deal with it.

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5. Supreme Court’s same-sex marriage verdict

Why in news: The Supreme Court decided on the same-sex marriage case, by a majority view, and held that non-heterosexual couples cannot claim an unqualified right to marry.

Key takeaways from the verdict:

• No fundamental right to marry:
  • All five judges on the Bench agreed that there is no fundamental right to marry under the Constitution.
• Dilemma over Special Marriage Act:
  • All five judges also unanimously agreed that it is not possible to tweak the Special Marriage Act, 1954 by using gender neutral language to allow same-sex marriage.
  • The petitioners had asked the SC to interpret the word marriage as between “spouses” instead of “man and woman”.
  • The petitioners had asked for striking down provisions of the SMA that are gender-restrictive.
  • The SC said striking down the SMA provisions would jeopardise the legal framework for interfaith and inter-caste couples.
  • He added that interpreting the SMA in a gender neutral way would amount to judicial lawmaking, which would violate the doctrine of separation of powers.
• Opinion on Civil Union:
  • A ‘civil union’ refers to the legal status that allows same-sex couples specific rights and responsibilities that are normally conferred upon married couples.
  • The majority view opined that although a civil union resembles a marriage, it does not have the same recognition in personal law as marriage.
  • The minority view opined that the right to form unions emanates from the fundamental right to freedom of speech and expression, and the right to life.
  • The minority view also said that with civil union status, same-sex couples must be extended the “bouquet of rights” that heterosexual couples are entitled to.
• A high level Committee:
  • All five judges took note of the Centre’s stand that a high-level Cabinet committee will look into rights that can be conferred on non-heterosexual couples.
  • This would range from:
    • opening joint bank accounts,
    • same-sex spouses being a beneficiary for provident fund,
    • pension or inheritance to such spouses,
    • being able to take medical decisions for the other spouse, etc.
• Opinion on adoption:
  • The minority view struck down specific guidelines by the Central Adoption Resource Authority (CARA) to the extent that it disallows same-sex or unmarried couples from jointly adopting a child.
  • The CJI said that it is discriminatory to assume that only married, heterosexual couples can provide a safe space for raising children.

Is the right to marry a fundamental right?

• Marriage, according to the court, is an institution set up under law and same-sex couples do not have a right to participate in it unless the law permits them to do so.
• The fact that it does not permit them at this moment, according to the court, is not unconstitutional.
• The Special Marriage Act, 1954, a legislation that was enacted to enable inter-faith marriages, and the challenge against which formed the foundation of the hearings was upheld in its current form, i.e., permitting marriages only between a ‘man’ and a ‘woman’.
• Ultimately, the court held that there is no fundamental right to marry.
  • Although the minority observed that the right to marry interfaces with other fundamental rights, including the right to freedom of expression, freedom of movement, and a life of dignity and autonomy.

If not marriage, do queer couples have the right to enter into a ‘civil union’?

• A civil union is a marriage-like setup where the couple enjoys a catena of legal rights and protections.
• The court found that only an elected legislature is competent to make such interventions.
• This is because granting same-sex couples the right to marry or enter into a union will involve changes to a vast range of legislative architectures and policies.

Can queer couples adopt children?

• Since a same-sex couple cannot marry under Indian law, it follows that they cannot also adopt children as a couple.
• However, since the Juvenile Justice Act 2015 permits a single person to adopt a child, same-sex couples were able to adopt children by designating one of the partners as the legal parent.
• In 2022, however, the Central Adoption Resource Authority (CARA) issued the Adoption Regulations, which require a couple to be in a two-year stable marital relationship to be eligible for adoption.
• A circular was also issued prohibiting a person from adopting a child if that person was in a live-in relationship.
• Consequently, queer couples became ineligible to adopt.
• Ultimately, the court shifted the burden to the executive and encouraged it to reconsider the laws on adoption in line with the best interests and welfare of children.

What has changed for queer couples?

• The judgment has refused to recognise queer marriages or civil unions.
• The court stated that a queer person has the right to choose an emotional, intimate and/ or live-in partner, even if such a relationship does not amount to a marriage or civil union.
• This is largely a restatement of the law laid down in ‘Navtej Singh Johar’, where the court had decriminalised homosexuality by striking down Section 377 of the Indian Penal Code, as well as ‘Puttaswamy’, where it had recognised a queer person’s sexual autonomy as a facet of their fundamental right to privacy.

Legal arguments for same-sex marriage

• They deserve equal rights:
  • It is argued that legalising queer marriages will destroy the concept of family, which is the fundamental building block of society.
  • Against this it is argued that they are equal citizens of the country and deserve the same rights as cisgender heterosexual people.
  • Queer people are demanding equal rights, not just of marriage, but of horizontal reservation and protection from natal families.
• Proper interpretation of statutes:
  • It is also argued that this is not a matter of judicial interference, but one of interpreting the statutes.
  • There is no reason that statutes cannot be interpreted creatively in favour of fundamental rights.
• Religion vs constitution:
  • It is true that laws relating to marriage have a religious genesis.
  • However, Indian law on marriage is a mixture of common law and religion.
  • While traditionally, marriage under Hindu law is a sacrament, it stopped being so when divorce was introduced.
  • Marriage is now nothing but a status conferred by law.
  • The court said in the Sabarimala case that religion must give way to constitutional morality, though a review of the judgment is pending.
  • Queer relationships were not an aberration in Hinduism.
  • Petitions argues for marriage equality under all religious laws.
• Social or circumstantial infertility:
  • It is also argued that the laws pertaining to marriage necessitate procreation.
  • While this may be true, there seem to be no attempts to take away the marriage rights of heterosexual married couples who do not procreate as per mutual consent.
  • While entering into a queer relationship, both parties are aware that they will be unable to procreate.
  • This is called ‘social’ or ‘circumstantial’ infertility.
    • The term was initially coined to describe women who did not have children despite no medical condition, and is now used in the context of queer people too.
  • If both parties decide to marry with the knowledge that one or both of them are impotent, there cannot be a case for taking away their rights merely because they are queer.
• Alternative family structures have existed since time immemorial:
  • It is also said that conventional conceptualisations of family and marriage are facing evolutionary challenges.
  • This argument is based on the idea that a family comprises two parents of the opposite sex and their two children.
  • This argument makes it seem as though new forms of marriage which are non-heterosexual are new but they are not.
  • The hijara ‘gharana’ system, maitri karar and other forms of alternative familial structures have existed for a long time in the sub-continent.

Way forward:

• Extending marriage to queer couples, or enabling them to enter into civil unions, is a far more complex issue than the petitioners may have initially anticipated.
• New laws will have to be written, and wholesale amendments will have to be made to existing laws.
• This is a mammoth legal reforms project that will not only require careful deliberation, extensive consultation, and incisive drafting, but a radical shift in the outlook towards family law.
• It must discuss and deliberate with all relevant stakeholders:
  • the queer community, to understand their problems;
  • representatives of all religious communities, to understand if and how religious personal law can be suitably reconciled with the right of queer persons to marry;
  • the Union and State Governments, to appreciate the practical difficulties involved in this deliberative exercise;
  • family law academics and practitioners, to understand the scope and draft the text of the necessary amendments.
• The legislature must now take the lead in re-evaluating and improving Indian family law to make it more inclusive, gender-just, and non-discriminatory.