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The Most Complex International Borders in the World – Part 1

 

In part 1, a look at various international border issues and disputes, with a special emphasis on the Indo-Bangladeshi enclave issue.

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The Most Complex International Borders in the World – Part 2

 

In part 2, a continuation of various international border issues and disputes, with a special emphasis on the Kashmir border.

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[RSTV] Law of the Land – The Benami Transactions (Prohibition) Amendment Bill, 2015

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The bill was introduced in Lok Sabha on 13 May, 2015. The Bill seeks to amend the Benami Transactions Act, 1988.

Why You Should Know?

The topic is important from the view point of both General Studies Paper II and III. In General Studies Paper II it falls under Acts, Policies & Bodies. In General Studies Paper III it falls under Internal & External Security sub topic Money laundering and its preventions.

There is also a possibility of questions in prelims as the topic is trending.

Historical Background

The Benami Transactions Act, 1988 was approved by Parliament in 1988. It was not implemented as it lacked enabling provisions because of which rules and guidelines couldn’t be framed.

The 1988 Act doesn’t contain any provision to keep confiscated property with central government. There was also a lack of empowering authorities with powers of civil court for effective implementation. The Bill also lacked an appellate mechanism.

The Amendment Bill Objective

Government of India wants to contain and curtail the domestic black money which is available in circulation in the country.

Government is also trying to generate and collect the land pool which is registered in Benami names.

The bill seeks to strengthen the law through amendments. Government plans to incorporate empowering sections so that implementation becomes possible. The bill seeks to prohibit holding property as Benami and restrict the right to recover or transfer property held in Benami. The bill seeks to broadly do four things:

  • Amend the definition of Benami Transactions.
  • Establish Adjudicating Authority
  • Setup Appellate Tribunal
  • Specify the penalty for entering into a Benami Transaction and provisions for confiscation of Benami properties.

The Amendment Bill Key Points

Proposed Definition of Benami Transactions

It is defined as an arrangement where property is transferred to or held by one person while the money for the same is paid by another person. The property is held for direct or indirect benefit of the person providing the money.

Any transaction made against a property where the owner of the property denies the knowledge of such property or makes a transaction in a fictitious name.

All the properties involved in Benami transaction will be considered as Benami properties.

Restrictions

The person being a Benamidar is refrained from re-transferring the Benami property held by him to the beneficial owner or any other person acting on his behalf. The Bill makes all such transfers null and void.

Specifying the Punishment

Those who found guilty of the offences of Benami Transaction may face:

  • Rigorous imprisonment for up to 7 years.
  • Have to pay a fine which may extend up to 25% of market value of Benami Property.

Effective Implementation

The bill empowers central government to make rules for the implementation of the provision of the bill.

The bill has provision for central government to designate one or more special courts for the purpose of the bill in consultation with the High Court Chief Justice of concerned state.

Exemptions

The 1988 Act had minimal exemptions. It provided for exemption only in case if property is registered in the name of

  • Female spouse
  • Unmarried Daughter, and
  • Co Pensioner

But the current amendment bill seeks to widen the spectrum of exemptions. It has been expanded to:

  •  Members of Hindu Undivided Family (HUF)
  • Corporates, Firms, Companies and Partners holding land in fiduciary capacity in the name of Directors, Trustees or other employees.
  • Property in the name of spouse and kids acquired from the known source of income
  • Lineal descendants and ascendance (cousins, relatives etc.)

Status of the Bill in Parliament

Initially, the bill was introduced by UPA government. The provision and exemption contained in the bill was objected by the head of Standing Committee on Finance Mr Yashwant Sinha.

At present time the NDA government is facing the same challenge from the congress quarters.

Implementation Process

Proceeding for Benami transaction will be initiated by initiating office who will be of the rank of Assistant Commissioner. The initiating officer will refer the case to adjudicating authority set up under the bill.

The relevant adjudicating authority will pass an order within a specified time after hearing the alleged

  • Benamidar
  • Beneficial Owner
  • Any other interested parties including bank companies
  • Any other person who makes a claim with respect to property

There is a provision to empower the adjudicating authority with powers of civil court.

There is a provision to setup an appellate tribunal to appeal against all orders of adjudicating authority.

After the final orders of adjudicating authority central government will confiscate the properties held as Benami.

Confiscated properties are to be managed and disposed of by officers designated by central government.

Critical Analysis

Unanswered Questions

How the property is going to be confiscated? What are the mechanisms which will be involved and how to check the power given to officers is not being misused?

The bill seems to be silent on this aspect.

Vagueness and Uncertainty

In case of Money Laundering Act the property is attached which is a proceed of crime. When we talk of proceed of crime we talk of such properties as derived or obtained as a result of criminal offence.

In case of Benami Transaction Act it appears that the initiating officer based on information he has can act on discretion to notify any property as Benami. This may lead to problem in implementation which can lead to excessiveness or arbitrariness.

Hence there is no certainty of action that can be taken under this bill.

Retrospective or Prospective?

As the bill is a mere amendment to Benami Transaction Act, 1988 there is a chance of it being implemented retrospectively. There is also provision in the bill which gives power to Government of India to notify it from any date it wants.

Also Benami is a sort of continuing offence and hence it is futile to discuss prospective or retrospective.

With implementation mechanism in place, initiating officer has to identify Benami property it seems it will difficult to dig cases retrospectively.

Rural Impact

The Hindu Undivided Family (HUF) has been exempted from Benami transaction act which pushes a large section of population in rural areas outside the ambit of the law.

The rest of the people are moneyed people thereby having a little impact on them.

A few poor people in rural area may be roughed up wrong side if record of ownership structure has been misplaced. This should be a very rare scenario.

Exemptions – Is it legalizing black money?

As seen earlier there has been a sweep of exemptions after which there will be hardly any Benami property left. With the inclusion of sons, relatives and cousins individual sort of got legal license to keep Benami properties.

Also the exemption being extended even to limited liability partnership in business arena gives a wrong signal. This can be misused under Corporate Social Responsibility by many corporates to have Benami properties.

There is one misconception that holding landing in fiduciary capacity by corporates, firms etc. will help in legalising black money. In fiduciary capacity money comes from known channel and is mostly for a purpose of trust. Hence, it is not Benami property. If the channels are unknown then it is not counted in fiduciary capacity.

Initiating Officer Role – Overburdened and over trusted?

Initiating officer is basically an investigating officer. He has discretionary to notify any property as Benami based on information he possess. But, where does the information comes from is a complete grey area. This has also not been addressed in bill.

Secondly, initiating officer has been given power to hold Benami property for 90 days without referring it to adjudicating authority. He doesn’t need to hear out the concerned parties also. This over trust can lead to arbitrariness and absurd results.

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[RSTV] India’s World – Japan China maritime dispute in focus again

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A White Paper has been brought out by the Defense Ministry of Japan which deals with threats posed towards Japan, especially in the Asia-Pacific Region. The paper displays concerns related to offshore gas platforms that China have been constructing in the East China Sea since 2013. The White Paper is going to be put up in the DIET (Bicameral Legislature of Japan) for discussion.

Issue

Although joint drilling in the East China Sea was negotiated by both parties in 2008, there still are disputes between the countries regarding maritime boundaries and respective exclusive economic zones.

Japan wants to postpone the project till the mutually agreed demarcation is finalised. It has also called on China to stop construction of oil and gas platforms in undemarcated waters in the East China Sea. Some reservoirs exist that extend partially into demarcated waters on the Japanese side and partially into undemarcated international waters. The Japanese apprehension is that these reservoirs could be tapped by China, leading to loss of gas reserves on the Japanese side.

History of maritime conflicts between Japan and China

Historically, the problem can be traced back to times of the Ming dynasty on whose basis the Chinese stake their claim for the disputed Diaoyu (Senkaku in Japanese) islands. In 1895, Japan defeated China and occupied Formosa (present day Taiwan) and many other territories on the Chinese mainland. But they had to let go of these acquisitions under Russian pressure. Hence, these territorial problems with their maritime dimensions have existed over the past 100 years.

The recent waves of problems date back to 1970 with discovery of supposedly huge oil & mineral reserves in the East China Sea. The Japanese moved in for exploitation of these resources backed by the United States. The Chinese were silent on the topic until they managed to normalise relations with the US. Realising that the US wasn’t that interested and won’t create much of a problem, China starts asserting its historical claims and the matter came to a head in the 1990s.

China’s assertiveness in the wake of its growing power globally has given it the heft to take Japan head on. Hence, the discovery of oil and gas resources is the immediate reason that has triggered off this latest phase of conflict.

The Japanese PM had visited China in November 2014. But, during that visit came the news of the Chinese Navy illegally taking Red Corals from Ogashwara Islands which form a part of the Tokyo Metropolitan. This activity of China didn’t go down well with Japan.

Japanese concern apart from the oil & gas, and why such an emphasis on the East China Sea in the White Paper?

Japan has emphasized on the East China Sea specifically for three reasons:

  • To assess the stand of the International Community on the overall Japan-China issue.
  • To assess its own political and public opinion.
  • With an eye towards amending the old Japanese policy of renunciation of overseas wars (the assertion of Japanese rights to the Senkaku islands helps in getting this crucial piece of legislation to make Japan a more normal country).

Also, 15th August, 2015 marks the 70th anniversary of the end of World War II, and Japan has wanted to say things for atrocities committed against it towards the ending of the War.

What made China move unilaterally in exploration even after the 2008 Agreement?

In 2008, a broad agreement was reached between the two countries, which can be refined in terms of nitty gritty to:

  • Profit sharing
  • Greater rights

But the deal got bogged down by many technicalities. At that point of time, the Chinese recognised a situation that would strengthen their claims. Accordingly, they established the East China Sea ADIZ (Air Defense Identification Zone) – an area of air traffic restrictions in the East China Sea to extend their claims to Diaoyu and other Exclusive Economic Zones.

The Chinese have adopted a method of responding and reacting which will create a status-quo first and then help them move unilaterally. This unilateralism of China has created many a problems.

Do Chinese platforms really fall outside the geographical scope of the 2008 Agreement and affect Japanese reservoirs?

In April 2014, after Japan moved its self defense forces and radars to the Unagumi Islands, China created a lot of hue and cry on the issue. Now, even though China is within its geographical scope, Japan is creating an issue as a reciprocation. This move of Japan is determined more by domestic reasons than any technical or international ones.

The problem cannot be solved till the time the ownership issue is wrapped up by both sides.

There is apprehension that China might use these platforms for military purposes, How far is it justified?

Many platforms in the South China Sea constructed by the Chinese have a clear military objective. They are provided with helipads and docks for ships. Hence, this apprehension of the Japanese is not completely notional.

What does Japan stand to gain with attracting so much attention of the international community ?

The gains Japan is eyeing are three fold:

  • Domestic – It will help in creating public opinion in favour of the present govt.
  • International – Japan fears that withdrawal of American forces from Asia will make Japan take larger calls with respect to Asia on its own without US support from now onwards. For this, it will need to have the international community behind it.
  • Economic – Japan will get secure sea lines with respect to oil and commodity movement.

Sometimes things go wrong at lower levels which go unnoticed in the international arena. Japan wants to keep all such activities from the Chinese side in the news.

Is Japan encouraging a confrontational attitude elsewhere?

There is concern among the small neighbors of China in South China Sea about China’s assertiveness and activities. Naturally, Japan is now seeking to get these small countries on board with it against China, as this will make its case more convincing.
Although Japan’s particular stand in history and its roles in World Wars have created an apprehension for the small countries to get on board, the image has reversed and the smaller countries are willing to ally with Japan because of:

  • Chinese growing power and assertiveness.
  • Strong exercise of Japanese soft power through technology development and Official Development Assistance (ODA) to small Asian countries.

China’s Stand on the White Paper

China has called Japan two-faced. It accuses Japan on one hand of talking about dialogue and negotiations for settling the issue, while on the other hand instigating and constantly messing around in matters they should be agreeing about.

How it concerns India? Can India be a neutral observer?

This is an issue for any country using the East China Sea for shipping and hence, India has a role to play into it.

Officially, India has taken the neutral path, with the view that it is an internal problem between China and Japan, and that India is not going to meddle in it.

But we have expressed our dissatisfactions, concerns, worries etc about China and are actively trying to assert our pressure on that country. The Indian PM’s visit to Japan saw him referring to expansionism, implicating China. Further, we have raised the point that China has protested India’s activities in Vietnamese exclusive economic zones, despite China being no way involved in a matter between India and Vietnam. We have also given a clear indication of our stand by inviting Japan to the Malabar Naval Exercise after a gap of several years.

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[RSTV] Law of the Land – Rights of persons with Disabilities Bill 2014


Objective

To ensure equality and non-discrimination of people with special disabilities.

The subject of legislation falls under State list as Relief of the disabled and unemployable then why is this bill introduced in the parliament?

It is to fulfil the obligation under United Nations convention on Rights of persons with disability, 2006. India had ratified this convention on 2007.

This falls under Article 253 of the Centre State relations wherein central government can legislate on any subject to give effect to International Conventions and Agreements.

Features of the Bills

  1. Twelve more disabilities have been added to the existing seven making it 19 disabilities altogether.
  2. Ensures Right to equality, Life with dignity and Respect for his/her Integrity to Persons with Disability.
  3. People with not less than 40% disability to be given reservation in education and employment and also special preference in Government schemes.
  4. Increasing reservation in posts from existing 3 to 5%
  5. All education institutions to provide inclusive education and disable friendly accommodation.
  6. A National Fund is proposed to provide financial support to persons with disabilities;
  7. Setting up of National Commission and State Commission to act as Grievance Redressal Mechanism and to monitor implementation of the proposed legislation
  8. Penalties for offences committed against persons with disabilities
  9. Court of Session to be designated as Special Court in consultation with the chief justice of relevant states by the State Government in every district to try offences against persons with disability.
  10. Imposed obligations  on State Governments such as ensuring that all existing public buildings are made accessible within five years, all public documents are in accessible format and  retrofitting of vehicles and accessibility of bus stops, railway stations and airports for disabled persons.

Parliamentary Standing Committee Recommendations

  1. To include Private firms under Reservation policy as that would help them gain access to outsourced government jobs.
  2. To include kidney failure, blood cancer, type 1 diabetes, dwarfism and transgender in the disability list.
  3. To define more clearly the definition of Social barriers so that attitudinal changes can be brought in the society to aid the implementation of the legislation.
  4. To define Discrimination more clearly so that the penalty imposition cannot be misused.
  5. To increase the upper age limit to 21 years under Right to Education.
  6. To frame disability budget inorder to address the problems of disabled people.
  7. Five year time frame may be suitable for small government institutions but not feasible for large buildings.
  8. States might need extra support in financial terms to implement the provisions of the bill.
  9. To provide food, shelter, clothing and health services free off cost to the disabled.
  10. Special treatment for women and child who are disabled should be included in the bill as they are subject to more abuse.

Analysis of the Bill

The existing PH certificate is insensitive to the intricacies of the disability condition and the associated diversities. The Bill has left it to the state governments to decide the form and type of certificate which might lead to more inconsistencies.

The Bill remains silent on the Funding Measures that might be extended for carrying out the provisions of the bill.

It is a Tall call on the states to implement the provisions of the bill within the time frame of 5 years without any clue about the financial help that will be extended from the central government.

The bill is aspirational but lacks a futuristic perspective. The bill might have to go through a series of amendments  in future as most of the definitions are not clear and exhaustive.

The legal framework lacks clarity as in there is no information about What services will be provided, How it will be provided, When and Where it will be provided and what is the remedy if the service is not provided.

The argument that the bill imposes a financial obligation on the states is not appropriate as the bill has laid down only basic facilities for disabled people and its high time their rights are recognised.

Special Provisions for poor disabled people should be implemented as they have minimal livelihood options and are  often subjected to neglect and abuse.

 

 

 

 

 

 

 

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Consistent Public Administration Topper, Now IAS, Tells You How to Prepare Public Administration

Prem Ranjan Singh is one those candidates IPS IAS Officers who has consistently scored high marks in Public Administration in every single attempt, despite the performance of the Pub Ad option itself.

He was selected to the IPS before walking into IAS in CSE 2013. He tells you in this video , what he read for getting that consistent score in Public Administration.