Editorials/Opinions Analyses For UPSC 02 December 2021

Contents

1. Small grant but a big opportunity for local bodies
2. India’s informal economy has not shrunk
3. Errors of judgment in POCSO case

Small grant but a big opportunity for local bodies

Context:

In early November 2021, a potentially game-changing and transformative development went by, almost unnoticed — the release of almost Rs. 8,500 crores to 19 States, as a health grant to rural and urban local bodies (ULBs), by the Department of Expenditure, the Ministry of Finance.

Relevance:

GS-III: Indian Economy, GS-II: Governance (Government Policies and Initiatives)

Dimensions of the Article:

1. About the Health grant for Local Bodies
2. What were the previous experiences of government funding?
3. Fifteenth Finance Commission’s Recommendations on Health
4. Focus on Local Bodies
5. Important steps to work with the grant
6. Way Forward

About the Health grant for Local Bodies

• The commission had recommended a total grant of Rs 4,27,911 crore to local governments including health grants of Rs 70,051 crore for the period from 2021-22 to 2025-26.
• Of this amount, Rs 43,928 crore has been recommended for rural local bodies and Rs 26,123 crore for urban local bodies.
• For FY 2021-22, Rs 13,192 crore has been allocated which would be 2.3% of the total health expenditure (both public and private spending together) and 5.7% of the annual government health expenditure (Union and State combined).
• This grant is equal to 18.5% of the budget allocation of the Union Department of Health and Family Welfare for FY 2021-22.
• It is around 55% of the second COVID-19 emergency response package announced in July 2021.
• These grants are meant to strengthen healthcare systems and plug critical gaps at the primary healthcare level.
• Interventions such as support for diagnostic infrastructure, block-level public health units, construction of buildings at sub centres, PHCs, CHCs will directly lead to strengthening the primary health infrastructure and facilities in both rural and urban areas.
• Rural and urban local bodies can play a key role in the delivery of primary healthcare services and in achieving the objective of universal healthcare.

What were the previous experiences of government funding?

• In 1992, as part of the 73rd and 74th Constitutional Amendments, the local bodies in the rural and urban areas given the responsibility to deliver primary care and public health services.
• Alongside, the rural settings continued to receive funding for primary health-care facilities under the ongoing national programmes.
• But, the government funding for urban primary health services was not channelled through the State Health Department and hence the ULBs which fall under different departments in various States did not increase the allocation for health.
• Reasons – The reasons for lesser allocation can be attributed to
• Resource crunch
• Lack of clarity on responsibilities related to health services
• Completely different spending priorities
• In 2005, National Rural Health Mission (NRHM) was launched which partly improved the impact of RLBs not spending on health.
• The National Urban Health Mission (NUHM) was launched eight years later with a meagre annual financial allocation which never crossed Rs 1,000 crore (around 3% of budgetary allocation for the NRHM)
• In 2017-18, the ULBs and RLBs in India were contributing 1.3% and 1% of the annual total health expenditure in India.
• In urban settings, most local bodies were spending from less than 1% to around 3% of their annual budget on health.

Fifteenth Finance Commission’s Recommendations on Health

• States’ health spending should be boosted to more than 8% of their budgets by 2022, according to the XVFC.
• Given the imbalance in medical practitioner availability between states, an All-India Medical and Health Service, as intended under Section 2A of the All-India Services Act, 1951, is required.
• The entire grants-in-aid support to the health sector for the award period is 10.3% of the total grants-in-aid proposed by XVFC. The funding for the health sector will be provided on a no-strings-attached basis.
• The XVFC has recommended health grants for urban health and wellness centres (HWCs), building-less sub centres, block level public health units, support for diagnostic infrastructure for primary healthcare activities, and the conversion of rural sub-centres and PHCs to HWCs. These funds will be distributed to local governments.

Focus on Local Bodies

• The duty for delivering primary care and public health services was shifted to local bodies (LBs) in the rural (Panchayati raj institutions) and urban (corporations and councils) regions as part of the 73rd and 74th Constitutional Amendments in 1992. The expectation was that this would lead to more attention to and funding for healthcare in the geographic authority of local governments.
• In addition, rural areas received support for primary healthcare institutions as part of continuing national programmes. However, the judgement was a setback, particularly for urban healthcare.

Government Measures:

1. National Rural Health Mission (NRHM): The National Rural Health Mission (NRHM) was established in 2005 with the goal of providing rural populations, particularly vulnerable groups, with accessible, cheap, and high-quality healthcare. NRHM aims to offer rural residents, particularly disadvantaged populations, with equitable, inexpensive, and high-quality healthcare.
2. National Urban Health Mission (NUHM): NUHM strives to enhance the health of the urban population in general, especially the poor and other marginalised groups, by ensuring equal access to high-quality healthcare.

Important steps to work with the grant

1. First, the grant should be used to educate key stakeholders in local governments about their roles and responsibilities in primary care and public health service delivery.
2. Second, Citizens’ understanding of local government’s duties in healthcare services should be increased. Such a strategy might serve as an empowering instrument for system accountability.
3. Third, Civil society organisations could play a larger role in promoting awareness of the role of Local Bodies in health, as well as maybe building local dashboards to assess success on health programmes.
4. Fourth, the health grants from the Fifteenth Finance Commission should not be used as a “replacement” for local government health expenditure; instead, local governments should boost their own health spending on a regular basis to have a real impact.
5. Fifth, institutionalise systems for greater cooperation among different agencies working in rural and urban regions. It is necessary to build time-bound and coordinated action plans with quantitative indicators and road maps.
6. Sixth, Local governments are still considered “healthy greenfield” places. Young administrators in charge of such Rural Local Bodies and Urban Local Bodies, as well as enthusiastic councillors and members of Panchayati raj institutions, must use this chance to establish novel health models.
7. Seventh, A number of state governments and cities had planned to build various sorts of community clinics in rural and urban regions before the new coronavirus pandemic began. All of these initiatives should be revived with the funds.

Way Forward

• India’s healthcare system needs additional government support.
• When it comes to local governments, however, incremental financial allocations must be supplemented by elected officials demonstrating health leadership, multiple agencies coordinating with one another, increased citizen engagement in health, the establishment of accountability mechanisms, and the process must be guided by a multidisciplinary group of technical and health experts.
• The health grant from the Fifteenth Finance Commission has the potential to develop a health ecosystem that can serve as a long-awaited springboard for mainstreaming health in rural and urban local government activity.
• This is an opportunity that the Indian healthcare system cannot afford to forego.

-Source: The Hindu

India’s informal economy has not shrunk

Context:

According to a recent State Bank of India (SBI) Research report, the informal economy in India has been shrinking since 2018.

Relevance:

GS-III: Indian Economy (Inclusive growth, Government Policies and Interventions)

Dimensions of the Article:

1. More about the Informal Economy
2. About India’s Informal Workforce
3. Issues with the SBI Study on the Informal Sector in India
4. Issues with having a majority in the informal sector

More about the Informal Economy

• Household enterprises that are not formed as distinct legal organisations and for which no comprehensive records are available are classified as informal enterprises by the International Labour Organization’s 15th International Conference of Labour Statisticians (1993).
• Informal employees were classified as individuals who did not have access to social security during the 17th Conference (2003).
• Internationally comparable estimates of both forms of informality (given above) are available based on these criteria.
• India has a rate of 80% and 91%, respectively. The latter is greater since formal businesses use both formal and informal personnel.

About India’s Informal Workforce

• India’s estimated 450 million informal workers comprise 90% of its total workforce, with 5-10 million workers added annually. (As per Periodic Labour Force Survey, 2017-18, 90.6 per cent of India’s workforce was informally employed.)
• Informal Labour is largely characterized by skills gained outside of a formal education, easy entry, a lack of stable employer-employee relationships, and a small scale of operations.
• The statistics of the ILO report indicates that 95% of the workforce is in the informal sector.
• India’s informal sector is the biggest piece in our economy as it employs the vast majority of the workforce accounting for about half of GNP according to Credit Suisse, and the formal sector depends on its goods and services.
• Between 2004-05 and 2017-18, a period when India witnessed rapid economic growth, the share of the informal workforce witnessed only a marginal decline from 93.2 per cent to 90.6 per cent.
• Looking ahead, it is likely that informal employment will increase as workers who lose formal jobs during the COVID crisis try to find or create work (by resorting to self-employment) in the informal economy.
• Further, according to Oxfam’s latest global report, out of the total 122 million who lost their jobs in 2020, 75% were lost in the informal sector.
• According to the SBI research, the informal sector would account for just 15-20% of GDP in 2021, down from 52.4 percent in 2018. The informal economy in India has been shrinking since 2018.

Issues with the SBI Study on the Informal Sector in India

• Lack of Standard Definition: The SBI study uses a number of different definitions of formality (digitisation, GST registration, cashless payments), none of which are widely utilised. These may be useful tools for fostering formality, but they cannot be equated with formality on their own or even in combination.
• Impact of Pandemic: The SBI report conflates the decline in the informal sector’s proportion of GDP as a result of COVID-19’s economic impact with formalisation. The lockdowns, as well as the resulting economic slump, had a negative influence on the informal economy. The lockdowns had the greatest impact on industries with a higher level of informality.
• Fall in Gross Value Added (GVA): The drop in informal activities might be to blame for the informal sector’s declining percentage of GVA. At best, calling this formalisation is deceptive. We don’t know if the decrease in GVA is temporary or permanent. It has certainly resulted in job losses, particularly in the non-farm sector.
• Role of Agriculture: The proportion of agricultural workers in total employment increased dramatically between 2018-19 and 2019-20 (National Statistical Office’s Periodic Labour Force Survey). Agriculture is virtually totally unorganised, both in terms of businesses and employees.
• Misconceptions regarding e-Shram portal: The number of employees registered in the new e-Shram site, according to the SBI, is another factor for the reduction in informality. Over 9.9 crore unorganised labourers have enrolled since the portal’s introduction. Registration, on the other hand, refers to the documenting of employees rather than their formalisation. The portal’s goal is not to provide social security benefits.
• No Credible Database: There is no reliable database on India’s unorganised employees at the moment. In 2020, the government cried helplessness when asked for figures on how many migrant labourers were injured or killed during the lockdowns. These migratory labourers used to be, and still are, a component of the unorganised sector.
• Homogeneous Entity: In the research, the formal sector was regarded as a single unit. In actuality, the formal sector is divided into several tiers.
• Informalisation of the formal sector: Contractualization and outsourcing of labour have resulted in a large-scale informalisation of the official sector during the last three decades. The pandemic boosted the share of non-permanent, casual, and contract employees in the organised sector. As a result, a large amount of the formal sector’s production is really generated by informal labour within the official sector.

Issues with having a majority in the informal sector

• The informal sector remains unmonitored by the government.
• No official statistics are available representing the true state of the informal sector in particular (and hence the economy as a whole) which makes it difficult for the government to make policies. Unlike the formal economy, the informal sector’s components are not included in GDP computations.
• Informal sector workers have no job security, minimal benefits, very low pay, and often face hazardous working conditions.
• There is an expectation of increase in the number of people in informal sector with the issue that about 65-75% (15 million) of Indian youth, that enter the workforce each year are not job-ready or suitably employable.
• In India Restrictive labour laws- which promotes ad hocism and contract hiring in the labour market to circumvent the rigid labour laws.

-Source: The Hindu

Errors of judgment in POCSO cases

Context:

The Allahabad High Court recently held that oral sex with a minor (aged about 10 in this case) is not a case of ‘aggravated penetrative sexual assault’ under the Protection of Children from Sexual Offences (POCSO) Act.

This is shocking as the Act clearly lays down that “whoever commits penetrative sexual assault on a child below twelve years” is said to commit “aggravated penetrative sexual assault”. It also prescribes punishment with imprisonment for a term which shall not be less than 10 years but may extend to imprisonment for life.

Relevance:

GS-II: Social Justice (Issues related to Children, Government Interventions and Policies, Issues arising out of the design and implementation of Government Policies)

Dimensions of the Article:

1. About Protection of Children from Sexual Offences (POCSO) Act, 2012
2. Salient features of the Act
3. Contention/Criticisms around implementation of POCSO
4. Shortcomings in implementation of POSCO Act
5. Need to review the law
6. About POCSO Amendment Act 2019

About Protection of Children from Sexual Offences (POCSO) Act, 2012

• The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process.
• The framing of the Act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
• The Act provides for a variety of offences under which an accused can be punished. It recognises forms of penetration other than penile-vaginal penetration and criminalises acts of immodesty against children too. Offences under the act include:
  • Penetrative Sexual Assault: Insertion of penis/object/another body part in child’s vagina/urethra/anus/mouth, or asking the child to do so with them or some other person
  • Sexual Assault: When a person touches the child, or makes the child touch them or someone else
  • Sexual Harassment: passing sexually coloured remark, sexual gesture/noise, repeatedly following, flashing, etc.
  • Child Pornography
  • Aggravated Penetrative Sexual Assault/ Aggravated Sexual Assault

Salient features of the Act

• The act is gender-neutral for both children and for the accused.
• With respect to pornography, the Act criminalises even watching or collection of pornographic content involving children.
• The Act makes abetment of child sexual abuse an offence.
• Defines a child as any person below eighteen years of age
• Provides for mandatory reporting of sexual offences, keeping with the best international child protection standards.
• Police cast in the role of child protectors during the investigative process: The police personnel receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child.
• Provisions for the medical examination of the child in a manner designed to cause as little distress as possible
• Provision of Special Courts: that conduct the trial in-camera and without revealing the identity of the child, in a child-friendly manner.
• Timely disposal of cases: A case of child sexual abuse must be disposed of within one year from the date the offence is reported.
• Recognition to a wide range of form of sexual abuse against children: as punishable offences.
• People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
• Child-friendly process: It also provides for various procedural reforms, making the tiring process of trial in India considerably easier for children. The Act has been criticised as its provisions seem to criminalise consensual sexual intercourse between two people below the age of 18.

Contention/Criticisms around implementation of POCSO

Criticism in Definition of child

• The Act defines a child as a person under the age of 18 years. However, this definition is a purely biological one, and doesn’t take into account people who live with intellectual and psycho-social disability.
• A recent case in SC has been filed where a women of biological age 38yrs but mental age 6yrs was raped.
• The victim’s advocate argues that “failure to consider the mental age will be an attack on the very purpose of act.”
• SC has reserved the case for judgement and is determined to interpret whether the 2012 act encompasses the mental age or whether only biological age is inclusive in the definition.

Issue with the Mandatory Reporting feature

• According to the Act, every crime of child sexual abuse should be reported. If a person who has information of any abuse fails to report, they may face imprisonment up to six months or may be fined or both.
• Many child rights and women rights organisation has criticised this provision. According to experts, this provision takes away agency of choice from children.
• There may be many survivors who do not want to go through the trauma of criminal justice system, but this provision does not differentiate.
• Furthermore, mandatory reporting may also hinder access to medical aid, and psycho-social intervention.
• It contradicts the right to confidentiality for access to medical, and psychological care.

Contradiction with the Medical Termination of Pregnancy Act, 1971

• The POCSO Act was passed to strengthen legal provisions for the protection of children below 18 years of age from sexual abuse and exploitation.
• Under this Act, if any girl under 18 is seeking abortion the service provider is compelled to register a complaint of sexual assault with the police.
• However, under the MTP Act, it is not mandatory to report the identity of the person seeking an abortion.
• Consequently, service providers are hesitant to provide abortion services to girls under 18.

Issue with Legal Aid

• Section 40 of the Act allows victims to access legal aid. However, that is subject to Code of Criminal Procedure.
• In other words, the lawyer representing a child can only assist the Public Prosecutor, and file written final arguments if the judge permits.
• Thus, the interest of the victim often go unrepresented.

Issue with Consent

• The law presumes all sexual act with children under the age of 18 is sexual offence.
• Therefore, two adolescent who engage in consensual sexual act will also be punished under this law.
• This is especially a concern where adolescent is in relationship with someone from different caste, or religion.
• Parents have filed cases under this Act to ‘punish’ relationships they do not approve of.

Shortcomings in implementation of POSCO Act

• High number of cases: According to National Crime Records Bureau data, Cases registered under POCSO rose by 4.4 percent in 2016 over 2015.
• In 93.6% cases of aggravated penetrative sexual assault on children, the perpetrator was known to the victim. The most common perpetrators were family members/friends/neighbours/other known persons.
• Low reporting of crimes against boys: As per NCRB data, only 2.8% of all the instances of sexual crimes against children in 2017 were reported to be committed against boys, indicating that most cases remain undisclosed.
• Elimination of Child pornography: There was a need felt to make rules for prescribing the manner in which pornographic material involving a child can be deleted, destroyed or reported.
• Lack of provisions to protect children from assault in times of natural calamities and disasters.

Need to review the law

• In 2018, an online petition based on the plea of a child sexual abuse survivor gathered tremendous support – as the survivor-petitioner had unsuccessfully tried to register a complaint against her abuser after a delay of more than 40 years.
• Consequently, the Union Ministry of Law and Justice, at the request of the then Minister for Women and Child Development, clarified that no time limit shall apply for POCSO cases.
• Though this was a welcome clarification and would help strengthen the POCSO jurisprudence, it still fails to address the plight of children who were victims of sexual abuse before 2012.
• There is an urgent need to reform and revise our laws to account for various developments such as historical reporting of child sexual abuse.

About POCSO Amendment Act 2019

• Increases the minimum punishment (including death penalty) for penetrative sexual assault, aggravated penetrative sexual assault.
• The earlier amendment allowed the death penalty only in cases of sexual assault of girls below 12 years but now it will be applicable to boys also.
• Adds assault resulting in death of child, and assault committed during a natural calamity, or in any similar situations of violence into Aggravated penetrative sexual assault.
• Tightened the provisions to counter child pornography. While the earlier Act had punishment for storing child pornography for commercial purposes, the amendment includes punishment for possessing pornographic material in any form involving a child, even if the accused persons have failed to delete or destroy or report the same with an intention to share it.
• The Act defines child pornography as any visual depiction of sexually explicit conduct involving a child including photograph, video, digital or computer-generated image indistinguishable from an actual child.

-Source: The Hindu