1. SC Collegium firm on appointing gay lawyer as HC judge
Govt. had objected to the proposal citing Kirpal’s relationship with Swiss national and possibility of bias because of his advocacy for LGBTQ rights
The Supreme Court Collegium on Thursday stood firm by its resolve to have the government appoint openly gay lawyer Saurabh Kirpal as Delhi High Court judge, saying every individual is “entitled to maintain their own dignity and individuality based on sexual orientation”.
The three-member collegium of Chief Justice D.Y. Chandrachud, Sanjay Kishan Kaul and K.M. Joseph took the rare decision to publish the full extent of the government’s objections to Mr. Kirpal, based on his sexuality and his “passionate” advocacy for LGBTQ+ rights.
The collegium referred to letters from the Research and Analysis Wing (RAW), forwarded by the government, frowning upon Mr. Kirpal’s partner being a Swiss national, that they have an “intimate relationship” and the lawyer is “open about his sexual orientation”. The government, the collegium said, was also worried that same-sex marriage was not recognised in India though “homosexuality stands decriminalised”.
“Moreover,” the collegium quoted the Law Minister’s missive of April 2021 stating that Mr. Kirpal’s “passionate attachment to gay rights” did not rule out the “possibility of bias and prejudice”.
Replying to the government, the Collegium said the R&AW did not consider the individual conduct of either Mr. Kirpal or his partner as having “any bearing on national security”.
Besides, many constitutional authorities in India have or had foreign spouses. “Many persons in high positions, including present and past holders of constitutional offices have had spouses who are foreign nationals. There can be no objection to the candidature of Shri Saurabh Kirpal on the ground that his partner is a foreign national,” the collegium said. Moreover, in this case, Switzerland was a friendly nation, the collegium pointed out to the Centre.
Constitutionally recognised right
The collegium said the fact that Mr. Kirpal is open about his sexual orientation goes to his credit. The lawyer’s sexual orientation is his constitutionally recognised right. He has never been “surreptitious” about it. Mr. Kirpal, the Collegium said, possessed “competence, integrity and intellect” and he would be an asset to the Delhi High Court as a judge.
“His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity,” the collegium underscored.
If appointed, Mr. Kirpal would be India’s first openly gay judge in a High Court. The collegium however added a line that it “may have been advisable for the candidate [Mr. Kirpal] not to speak to the Press” about his prolonged appointment process.
Mr. Kirpal’s name was recommended five years ago by the Delhi High Court Collegium, in October 2017. The Supreme Court Collegium had approved his name in November 2021. The government had returned his file to the Collegium for reconsideration on November 25 last year.
2. Citizens’ committee to press for heritage panel clearance for work on Chamundi Hills
Panel members will meet the Deputy Commissioner next week and apprise him of their apprehensions about the projects.
The citizens’ committee to save the Chamundi Hills has resolved to press for clearance from the heritage committee before the implementation of development works at the hill top under Pilgrimage Rejuvenation and Spiritual Heritage Augmentation Drive (PRASHAD).
The PRASHAD scheme is a Union government project and infrastructure works worth ₹49.5 crore will be taken up ostensibly for providing amenities to the tourists. The details of the scheme remain sketchy and has drawn the ire of the citizens, activists and NGOs in the absence of any credible information.
The Chamundi Betta Ulisi Horata Samiti, which is an umbrella organisation of various NGOs and activist citizens, met here on Thursday and resolved to meet the Deputy Commissioner next week and inform him of their apprehensions about the projects.
3. National Export Cooperative Society to trade nano fertilizers, dairy products in 3 months
Shot in the arm: The society will have an authorised share capital of ₹2,000 crore.
Nano fertilizers produced by IFFCO and dairy products from Amul will be among the first few products that are expected to be exported by the first-ever National Export Cooperative Society that was approved by the Union Cabinet on January 11. The society’s registration will be complete in the next few days and the first consignment will be exported in three months, a senior government official said on Thursday.
Indian Farmers Fertiliser Cooperative Limited (IFFCO), Krishak Bharati Cooperative Limited (KRIBHCO), National Agricultural Cooperative Marketing Federation of India (NAFED), Guajrat Cooperative Milk Marketing Federation (GCMMF), better known as Amul, and National Cooperative Development Corporation (NCDC) will be the promoters of the society and contribute ₹100 crore each. The society will have an authorised share capital of ₹2,000 crore with the area of operation all over the country. It will have its registered office in Delhi.
Though Amul and IFFCO currently export products to countries such as Brazil, the Philippines, Kenya and Canada, the proposed society is expected to enhance the scale and volume of exports.
“The society will benefit the smallest of farmer or artisan who has a good product but does not have access to the right platform. Through this society, they will get access to international market and good returns too. Once the product has been tested for international standards, the packaging and export will be done by the society,” the official said.
The official said there were 8.54 lakh registered cooperatives with more than 29 crore members. “Cooperatives need to think globally and act locally to leverage their comparative advantage in all economic areas. The focus will be on exporting the surplus available in the country in the cooperative sector,” the official said.
The society will be different from the Export Promotion Council under the Ministry of Commerce that only acts as a facilitator and provides information about the potential markets that can be tapped for a particular product.
“This society will provide end-to-end services to the cooperatives. It will open foreign bank accounts and complete all the formalities, including necessary permissions for exporting a product. The dividends will be shared with the manufacturer instantly and without any brokerage fee,” the official said.
The proposed society will hire consultants in foreign countries who will help expand its footprint across continents.
4. SC backs right to free speech of 2 lawyers up for judgeship
Collegium refuses to drop the name of R. John Sathyan and Somasekhar Sundaresan; it also reiterates the names of advocates Amitesh Banerjee and Sakya Sen for Calcutta HC judgeship
The Supreme Court Collegium, in separate resolutions published on Thursday, backed the right to free speech of two lawyers recommended for appointments as judges in the Madras and Bombay High Courts.
“All citizens have the right to free speech and expression under Article 19(1)(a) of the Constitution. Expression of views by a candidate does not disentitle him to hold a constitutional office so long as the person proposed for judgeship is a person of competence, merit and integrity,” the collegium of Chief Justice of India D.Y. Chandrachud and Justices S.K. Kaul and K.M. Joseph said.
It refused to drop the name of advocate R. John Sathyan for the Madras High Court merely because the government received an Intelligence Bureau report that he had shared a Web portal’s article critical of Prime Minister Narendra Modi and another regarding the death of a medical aspirant who was unable to clear NEET, while portraying it as a “political betrayal”.
Instead, the collegium, in its January 17 resolution, said Mr. Sathyan should get precedence over all the other names recommended by the collegium on that day. It also drew the Centre’s attention to the part of the same IB report which said Mr. Sathyan did not have any “overt political leanings” and his integrity was intact.
On Bombay High Court advocate Somasekhar Sundaresan, the government had deduced that he was a “highly biased opinionated person” from his social media posts. It accused Mr. Sundaresan of being “selectively critical on social media on the important policies, initiatives and directions of the government”.
‘Part of public debate’
Sharply contradicting the government’s opinion on the lawyer, the collegium said, on the other hand, there was “no material to indicate that the expressions used by the candidate [Mr. Sundaresan] are suggestive of his links with any political party with strong ideological leanings”. In fact, the issues discussed by Mr. Sundaresan in his posts were part of public debate in the media, the judges’ body said.
The collegium reiterated the names of advocates Amitesh Banerjee and Sakya Sen for Calcutta High Court judgeships. It had recommended these two names four years ago in December 2018. The government returned them in November 2022 without citing “fresh material or ground” for its objection.
5. Women officers in command soon
Women Army officers after the Supreme Court judgment allowing them permanent commission on February 17, 2020. R.V. Moorthy
A total of 244 of them are being considered by the Army for promotion from the rank of Lieutenant-Colonel to Colonel against 108 vacancies and the first set of such postings is expected by January-end; selection is expected to ensure gender parity as they will be posted to command assignments
The Army has begun the process for selection of women officers for command postings in the rank of Colonel, which has so far been the domain of male officers.
According to sources, a Special No. 3 Selection Board is being conducted for promotion of women officers from the rank of Lieutenant-Colonel to Colonel from January 9 to 22. This flows from the Supreme Court judgment in 2021 upholding an earlier judgment granting permanent commission and command postings to women officers in all arms and services other than combat.
“A total of 244 women officers are being considered for promotion against 108 vacancies, from 1992 batch to 2006 batch, in various Arms and Services (Engineers, Signals, Army Air Defence, Intelligence Corps, Army Service Corps, Army Ordnance Corps and Electrical & Mechanical Engineers),” an Army source said.
At the culmination of the Selection Board, the 108 women officers who are declared fit will be under consideration to be posted on various command assignments. “The first set of such postings will be issued by end of January 2023,” the source said.
The vacancies for this Special No. 3 Selection Board were released by the government to promote affected women officers to ensure gender parity in the Army, the source said.
Elaborating, the source said a total of 60 affected women officers have been called as observers for the Selection Board to ensure fair conduct and clarify their apprehensions, if any.
Following judicial intervention, the Army granted permanent commission (PC) to women officers on a par with their male counterparts. “All women officers granted permanent commission are undergoing special training courses and challenging military assignments to empower them for higher leadership roles in the Army,” the source said, adding that permanent commission to women officers in junior batches had also commenced, in which they are considered for permanent commission in their 10th year of service.
For the first time, five women officers cleared the Defence Services Staff Course (DSSC) and the Defence Services Technical Staff Course (DSTSC) examination last year, which is held annually in September. The five women officers will undergo a one-year course and be given adequate weightage while being considered for command appointments, the source added.
Army chief General Manoj Pandey had announced last week that the Army would soon induct women officers into the Corps of Artillery.
6. Editorial-1: Judging a decade of the POCSO Act
Ten years have passed since the Protection of Children from Sexual Offences (POCSO) Act, 2012, enacted in consequence to India’s ratification of the UN Convention on the Rights of the Child in 1992, came into effect on November 14, 2012. The aim of this special law is to address offences of sexual exploitation and sexual abuse of children, which were either not specifically defined or in adequately penalised. Amidst the debate on the poor conviction rate under POCSO and a lowering of the age of consent from 18 years to 16 years (though rejected by the Central government), it is worth evaluating its impact on the ground.
A significant feature of the POCSO Act is its gender-neutral nature. Even though the National Crime Records Bureau has not published data on male and female victims separately, in Chhattisgarh, male child victims accounted for about eight in every 1,000 POCSO cases (0.8%). Though the reported number is not big, it still endorses society’s apprehension that the sexual exploitation of male children is also a serious issue that has been largely unreported. Second, there is sufficient general awareness now to report cases of sexual exploitation of children not only by individuals but also by institutions as non-reporting has been made a specific offence under the POCSO Act. This has made it comparatively difficult to hide offences against children.
The storage of child pornography material has been made a new offence. Further, the offence of ‘sexual assault’ has been defined in explicit terms (with increased minimum punishment) unlike an abstract definition of ‘outraging modesty of a woman’ in the Indian Penal Code.
No change in investigation
However, a large part of the investigation of offences under the Act is still guided by the Code of Criminal Procedure (CrPC). The investigation of penetrative sexual assault cases generally involves recording the statement of the prosecutrix, a medical and forensic science laboratory (FSL) examination, and determination of the child’s age. The POCSO Act provides for recording the statement of the affected child by a woman sub-inspector at the child’s residence or place of choice. But it is practically impossible to comply with this provision when the number of women in the police force is just 10%, and many police stations hardly have women staff. In 2015, the Ministry of Home Affairs (MHA) introduced a scheme to create an Investigation Unit on Crime Against Women (IUCAW) which was to be made up of 15 police officers (with at least one-third comprising women officers and headed by an additional superintendent of police) in each district. Its aim was to ensure quality investigation of crimes against women on a 50:50 expenditure sharing basis; the response by States to the scheme has been half-hearted. Similarly, despite funds being provided by the Centre to strengthen mahila desks, many police stations still do not have even a single woman staff.
Similarly, though there is a provision to record statements using audio-video means, and a Supreme Court judgment, Shafhi Mohammad vs The State of Himachal Pradesh (2018), on capturing and preserving the scene of crime of heinous offences using audio-video means (followed by standardization of technical specifications by the Bureau of Police Research and Development for uniformity), the pilot project has yet to be implemented across States. In the absence of proper infrastructure to ensure the integrity of electronic evidence, the admissibility of evidence recorded using any audio-video means will always remain a challenge. Another provision mandates the recording of the statement of the prosecutrix by a judicial magistrate. Though such statements are recorded in most cases, judicial magistrates are neither called for cross-examination during trial nor are those who retract their statement punished. In such a scenario, such statements get nullified.
Second, medical examination of the prosecutrix is conducted according to provisions of the CrPC. However, the medical examination of a girl child is conducted by a female doctor (as specified in the POCSO Act). Even so, and as observed by the Supreme Court of India, there are instances where the banned two-finger test is still in use. Further, there have been no attempts to upgrade the FSLs in States to expedite the examination of exhibits. The fact is that many cases have a charge sheet without an accompanying FSL report, which is then decided by courts.
Issue of age determination
Third, though age determination of a juvenile delinquent is guided by the Juvenile Justice (Care and Protection of Children) Act, no such provision exists under the POCSO Act for juvenile victims. The Supreme Court in Jarnail Singh vs State of Haryana (2013) held that the given statutory provision should also be the basis to help determine age even for a child who is a victim of crime. However, in absence of any change in the law or even specific directions, the investigating officers (IOs) continue to rely on the the date of birth recorded in school admission-withdrawal registers — which, in most cases, parents (in the absence of hospital or any other authentic records) are not able to defend in the court. Age estimation based on medical opinion is generally so wide in scope that in most cases minors are proved to be major. Once a minor is proved to be a major, the probability of acquittal increases based on other factors such as consent or no injury to private parts. Thus, the POCSO Act has made no difference in investigation when it comes to proving juvenility.
Period of investigation
Further, the time mandated to complete investigation of rape (as in the CrPC, without a similar provision in the POCSO Act) is two months. Though the aim is to expedite investigation, it has resulted in two significant changes on the field. One, there is much pressure on the IOs to somehow submit a charge sheet in two months irrespective of what stage the investigation is at. The IOs do not want to invite internal punishment as the Ministry of Home Affairs supervises POCSO cases through the Crime and Criminal Tracking Network & Systems (CCTNS) and State police headquarters. Thus, unfortunately, the focus is largely on completion of investigation in two months irrespective of quality.
Second, if a charge sheet was not put up in 90 days of the arrest of the accused, he/she was granted bail. Now, when a charge sheet is put up in 60 days of the FIR (and not arrest), the accused may seek bail immediately after the filing of the charge sheet. Thus, it is the accused, and not the victim, who gets the benefit of completing an investigation in a shorter time.
The POCSO Act provides that the court shall presume that the accused has committed the offence. No conditions whatsoever are laid down in the POCSO Act in contrast to the Indian Evidence Act (Section 114(b)) which clearly provides for the prosecution to prove recent intercourse, and the prosecutrix to state in court that she did not consent. However, it has been observed that even after the minor age of the victim is proved, no such presumption (howsoever small a relevance it may have) is taken up by the court during trial.
Under such circumstances, the expected increase in the conviction rate is unlikely to be achieved. Therefore, it is time that there is a review of the way the POCSO Act is implemented to see how far it has helped victims of sexual exploitation and what more needs to be done to ensure justice.
7. Editorial-2: Flip the page to the chapter on middle schoolchildren
After a gap of four years, the Annual Status of Education Report (ASER) report for 2022 was recently released in New Delhi. This nationwide household survey that covers all rural districts in the country generates estimates for schooling and basic learning for every State in India. Data from 2018 and 2022 can be compared with longer run trends over the last decade to see how the COVID-19 years have impacted India.
The National Education Policy 2020 gives high priority to the acquisition of foundational literacy and numeracy skills especially for children in early grades. “NIPUN Bharat” (where NIPUN is National Initiative for Proficiency in Reading with Understanding and Numeracy) the government’s flagship programme designed to translate policy into practice, is beginning to have traction in many States.
Given that the policy and implementation focus currently is on early years in primary school, it may be useful to also understand how older children in upper primary grades are faring.
A look at the metrics
In 2018, the all-India rural enrolment figure for the age group 6-14 years was 97.2%. In ASER 2022 data, this is now 98.4%. The rise has been accompanied by a significant shift away from private schools to government schools. Several factors may be at play — decrease in family income, permanent closures of low-cost private schools, and the efforts of many State governments to provide services even when schools were closed such as mid-day meal rations, teaching-learning materials shared remotely, worksheet and textbook distribution.
On the ‘plus’ side, rising enrolment means that more students can benefit for longer, sustained periods of time from schooling. Completion of the entire cycle of eight years of schooling for each cohort of 25 million students is no mean achievement in a country of India’s size and diversity. On the ‘minus’ side, with more and more students going through the middle school pipeline and attending secondary schools, there is increased competition for post-secondary opportunities. Board examinations continue to perform a gatekeeping function. Acute examination stress, grade inflation in school-leaving examinations, difficulties of gaining admission into college, and lack of appropriate jobs for many school leavers are all consequences of high enrolment and completion rates.
Since its inception, ASER has measured foundational skills in reading and arithmetic. The highest reading task on the ASER tool is reading a text at Grade II level of difficulty. In mathematics, the highest level is a numerical three-digit by one-digit division problem, usually expected of children in standard four or so. The assessment is done one on one with each sampled child in the household. The child is marked at the highest level that she/he can comfortably reach. The same tasks are used for all children aged 5 years to 16 years.
ASER data shows that even in 2018, basic skills of children in upper primary grades left a lot to be desired: less than a third of all children in standard five and less than half of those in standard eight could do division in pre-COVID-19 times. These low levels which are worrying declined further between 2018 and 2022, especially in reading. ASER evidence suggests that basic learning levels of middle schoolchildren have remained low and stagnant for over a decade. The “value” add of each year of middle school is small.
In the last 10 years, much has changed such as new technologies, new knowledge domains, and new ways of operating. But within our school systems, many children are reaching standard eight without being sufficiently equipped with foundational literacy and numeracy skills, let alone higher-level capabilities.
Unless children have strong foundational skills, they cannot acquire higher level skills or develop advanced content knowledge. ASER data shows that an “overambitious” curriculum and the linear age-grade organisational structure of Indian schools result in a vast majority of children getting “left behind” early in their school career. In the absence of in-school mechanisms for “catch up”, children fall further and further behind academically. With this comes low motivation to learn and a lack of self-confidence. At the same time, as children reach higher grades, parental and family aspirations for the child’s future increase.
Our school system is driven by preparations for Board examinations. Academic content transacted in schools implicitly assumes that students are being prepared for college. However, the reality is that a college degree is neither relevant nor possible for most students who finish secondary school. It is also not clear that a college degree will lead to the prized white-collar jobs that most students and their families are aspiring for.
Now that schools have stayed open for most of this school year, most children are back in school, the urgency of dealing with “learning loss” is acknowledged, and we have a policy that speaks of “critical thinking” and “flexible pathways through school”, it is time to rethink and rework what happens with our children once they grow past the foundational stage of schooling. Much of the country’s efforts in school education today are focused on ensuring strong foundations for children in the early years. But it is critical that we remember that middle schoolchildren also urgently need support for learning recovery and “catch up”.
With policy and implementation focused on the early years in primary school, it is time to rethink strategy for India’s schoolchildren who have gone past the foundational stage.