News Analysis 12 Aug, 2022

NEWS HIGHLIGHTS

1. Electricity (Amendment) Bill,2022
2. PESA Rule- 2022
3. Guardianship and Adoption Laws

 1. Electricity (Amendment) Bill,2022
 

Context
The Electricity (Amendment) Bill, 2022 was introduced in Lok Sabha.

About Electricity (Amendment) Bill, 2022

1. The Bill amends the Electricity Act, 2003 which regulates the electricity sector in India.
2. The Bill will facilitate "non-discriminatory open access" to the distribution network, allowing private companies to supply electricity, provided they get a license.
3. It sets up the Central and State Electricity Regulatory Commissions (CERC and SERCs) to regulate interstate and intrastate matters, respectively.
4. Tariff Revisions : The bill, if passed, will amend section 62 of the existing act and provide for graded revisions in tariff over a period of one year. An appropriate commission, the bill says,will also fix the maximum ceiling and minimum tariff by the appropriate commission.
5. License for distribution in multiple states: It will allow for the use of distribution networks by all licensees, enabling competition, enhancing efficiency of distribution licensees for improving services and ensuring sustainability of the power sector. CERC will grant licenses for distribution of electricity in more than one state.
6. Payment security: Electricity will not be scheduled or despatched if adequate payment security is not provided by the discom.
7. Contract enforcement: Empowers the CERC and SERCs to adjudicate disputes related to the performance of contracts related to the sale, purchase, or transmission of electricity. Further, the Commissions will have powers of a Civil Court.
8. Renewable purchase obligation: RPO refers to the mandate to procure a certain percentage of electricity from renewable sources. The Bill adds that RPO should not be below a minimum percentage prescribed by the central government.

Penalty:
Convert the rate of punishment from "imprisonment or with fine" to "fine."

Why is there opposition to the Bill?

1. Farmers’ groups : As they fear that the Bill will lead to stopping subsidies and that power   distribution will thereafter be under the control of private companies.
2. The workers in the power sector also oppose the Bill citing that privatization of distribution companies and generating units will result in job losses.
3. The Opposition parties questioned the Bill on federalist principles: Power or electricity is a subject which comes under the Concurrent List of the Constitution, and that the Centre should have consulted the States before bringing the Bill.
4. Bill paves way for privatization of profits and the nationalization of losses.

 Centre’s Stand 

1. Centre has maintained that the bill in no way takes away the provision for subsidies power for farmers.
2. The amendments are aimed at improving the efficiency in the sector and will not reduce the state’s role.

How will this Bill impact the Power Employees & Consumers?

1. Monopoly of Private Players:
It will lead to a major loss for government distribution companies, eventually helping to establish the monopoly of a few private parties in the country’s power sector.

2. Operational Issue:
     a) About 80% of the cost of supply is on account of power purchase, which will be the same for all distribution licensees operating in an area.
     b) Having different retailers will open a plethora of operational issues.
     c) By bringing in more retailers or distribution licensees, the quality of service or price is not going to be any different.

3. Hit on Consumers:
     a) As per a report of UK auditors, due to adoption of such faulty models the consumers had to pay in excess of 2.6 billion pounds.
     b) The cost of such transfers was charged to the ordinary consumer.
     c) While the private companies failed, consumers were hit the most.

Way Ahead

1. Being a subject of Concurrent List of Indian Constitution, recommendations from states should be taken into effective  consideration
2. Provision related to subsidies should be put up in an elaborate manner to eliminate any scope of confusion/ conflict.
3. Proper regulations for private players should be brought in.
    

2. PESA Rule- 2022
 

Context
Chhattisgarh government implemented the extension of panchayat rights in scheduled areas — PESA Rule-2022.

PESA Act, 1996:

1. This is a legislation that extends the provisions of Panchayats to the Fifth Schedule Areas. These areas have a huge tribal population. This Act is called “The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996” or “PESA”. 
2. The PESA Act was enacted in 1996 “to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas”.
3. Other than Panchayats, Part IX, comprising Articles 243-243ZT of the Constitution, contains provisions relating to Municipalities and Cooperative Societies.
4. Under the PESA Act, Scheduled Areas are those referred to in Article 244(1), which says that the provisions of the Fifth Schedule shall apply to the Scheduled Areas and Scheduled Tribes in states other than Assam, Meghalaya, Tripura, and Mizoram. The Fifth Schedule provides for a range of special provisions for these areas.

What is the background of PESA?

1. The 73rd constitutional amendment was made in 1992 to promote local self-governance in rural India.
2. This amendment gave shape to a three-tier Panchayati Raj Institution that was made into law.
3. But its application to the scheduled and tribal areas under Article 243(M) was restricted.
4. It was after the Bhuria Committee recommendations in 1995 that PESA Act 1996 came into existence.
5. The Parliament enacted the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) to extend Part IX of the Constitution with certain modifications and exceptions to the Scheduled V areas.
6. It ensured tribal self-rule for people living in scheduled areas of India.

What are the important powers provided to Gram Sabha under PESA?

1. Developmental: consultation before land acquisition, prevent land alienation, power to enforce prohibition, prior approval of all developmental projects and control over tribal sub-plan,power to issue utilization certificate for developmental expenditure, selection of beneficiaries of poverty alleviation and other schemes of individual benefits, control over institutions andfunctionaries of social sectors.
2. Dispute resolution as per traditional laws and customs: collective resolution of disputes on the basis of customs, traditional laws and religious beliefs of tribal areas.
3. Ownership and management of natural resources: maintaining ownership of local tribal communities over water resources,common lands, minor forest produce, minor minerals, etc. as

well as effective implementation and monitoring of related laws.

PESA rules :

1. After the PESA Act was enacted, the central Ministry of Panchayati Raj circulated model PESA Rules. So far, six states have notified these Rules.
2. PESA rules enable the residents of scheduled areas to strengthen their village-level bodies by transferring power from the government to the gram sabha, a body of all the registered voters of the village.
3. The powers of gram sabhas include maintenance of cultural identity and tradition, control over schemes affecting the tribals, and control over natural resources within the area of a village.
4. The PESA Act thus enables gram sabhas to maintain a safety net over their rights and surroundings against external or internal conflicts.
5. Without proper rules, its implementation is not possible as it is an exercise in decentralizing the power from institutionalized structures, back to the village residents.
6. The laws, once formed, will give gram sabhas the power to take decisions not only over their customs and traditionally managed resources, but also on the minerals being excavated from their areas.
7. The rules state that the gram sabha will have to be kept informed by any and all agencies working in their village, and that the gram sabha has the power to approve or stop the work being done within the village limits.
8. The rules also give power to the gram sabhas over management of resources over jal, jangal, zameen (water,forest and land), the three major demands of tribals; minor forest produce; mines and minerals; markets; and human resources.
9. The gram sabha would have the powers to monitor and prohibit the manufacturing, transport, sale and consumption of intoxicants within their village limits.
10. It also has a duty to maintain peace and resolve conflicts arising in the village, while protecting tribal customs and traditions, and encouraging customs like ghotul.

Special powers accorded by PESA Act includes the:

1. Exercising control over minor (non-timber) forest resources
2. Minor water bodies and minor minerals
3. Managing local markets
4. Preventing land alienation and
5. Regulating intoxicants among other things

Problems with PESA 

1. Dilution of role of Tribal Advisory Councils: PESA comes under the Fifth Schedule, which mandates Tribal Advisory Councils to oversee tribal affairs and also gives extrajudicial, extra constitutional powers to the Governors of each State to intervene in matters where they see tribal autonomy being compromised.
2. However, the councils, with the Chief Minister as their chairperson, have evolved into a nonassertive institution amid the machinations of upper-class politics, and its representatives hardly speak against the State governments’ policies.
3. The Governors, in order to have friendly relations with the Chief Ministers, have desisted from getting involved in tribal matters. Tribal activists have constantly complained that there is not even a single instance where the Governors have responded to their petitions for interventions in threatening crises, such as deepening clashes over land, mining or police excesses.
4. Lack of coordination at Centre: Even if one were to expect proactive intervention from the Centre, PESA would get entangled in bureaucratic shackles. Two different ministries, the Ministry of Panchayati Raj and the Ministry of Tribal Affairs, have an overlapping influence on the implementation of PESA and they function almost without any coordination.
5. Lack of operationalisation: In most of the state the enabling rules are not in place more than eight years after the adoption of the Act suggests that the state governments are reluctant to operationalise the PESA mandate.
6. Ignoring the spirit of PESA: The state legislations have omitted some of the fundamental principles without which the spirit of PESA can never be realized. For instance, the premise in PESA that state legislations on Panchayats shall be in consonance with customary laws and among other things traditional management practices of community resources is ignored by most of the state laws
7. Ambiguous definitions: No legal definition of the terms like minor water bodies, minor minerals etc. exist in the statute books. The states in their conformity legislations have also not defined the term leading to ambiguity and scope of interpretation by the bureaucracy.
    

3. Guardianship and Adoption Laws

Context
A Parliamentary Standing Committee tabled its report on August 8, 2022, in both Houses of Parliament on the ‘Review of Guardianship and Adoption Laws’.

Recommendations of the Parliamentary panel on guardianship and child custody?

1. Need to amend the HMGA (Hindu Minority and Guardianship Act, 1956)
2. Accord equal treatment to both mother and father as natural guardians.
3. In cases of marital dispute, need to relook at child custody which is typically restricted to just one parent where mothers tend to get preference.
4. Courts should be empowered to grant joint custody to both parents when such a decision is conducive for the welfare of the child, or award sole custody to one parent with visitation rights to the other.
5. On adoption, there is a need for a new legislation that harmonizes the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Hindu Adoptions and Maintenance Act (HAMA),1956 and that such a law should cover the LGBTQI community as well.

Current law on guardianship:

1. Indian laws accord superiority to the father in case of guardianship of a minor.
2. Hindu Minority and Guardianship Act, (HMGA) 1956: the natural guardian of a Hindu minor in respect of the minor’s person or property “is the father, and after him, the mother: provided the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.”
3. Muslim Personal Law (Shariat) Application Act, 1937: The Shariat or the religious law will apply in case of guardianship according to which the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty though the father’s right to general supervision and control exists. The concept of Hizanat in Muslim law states that the welfare of the child is above all else. This is the reason why Muslim law gives preference to the mother over the father in matters of custody of children in their tender years.
4. Githa Hariharan vs Reserve Bank of India in 1999 challenged the HMGA for violating Article 14 of the Constitution of India and the court held that the term “after” should not be taken to mean “after the lifetime of the father “, but rather “in the absence of the father”. But the judgment failed to recognise both parents as equal guardians, subordinating a mother’s role to that of the father. Though the judgment sets a precedent for courts, it has not led to an amendment to the HMGA.
5. Law Commission of India: 257th report on “Reforms in Guardianship and Custody Laws in India” in May 2015 and 133rd report in August, 1989 on “Removal of discrimination against women in matters relating to guardianship and custody of minor children and elaboration of the welfare principle”

What about cases of marital disputes?

Some courts such as the Punjab and Haryana High Court andBombay High Court have framed rules to grant joint custody or shared parenting.

Can queer and transgender people adopt children in India?

1. Adoption Regulations, 2017 is silent on adoption by LGBTQ people and neither bans nor allows them to adopt a child.
2. Eligibility criteria for prospective adoptive parents include physically, mentally and emotionally stable, financially capable and should not have any life-threatening medical condition.
3. Single men can only adopt a boy while a woman can adopt a child of any gender.
4. A child can be given for adoption to a couple only if they have been in a marital relationship for at least two years.
5. The HAMA which applies to Hindus, Sikhs, Jains and Buddhists allows men and women to adopt if they are of sound mind and are not minors.
6. Activists say LGBTQ people who seek adoption face institutional discrimination because of stigma.
7. Therefore, the law should be amended to include them as eligible candidates including when they apply as non-single parents such as when they are in civil unions or married for which there is no legal recognition in the country as yet even though the Supreme Court legalised gay sex in 2018.

Inter-Country Adaption

Inter-country adoption is:

• Legally adopting a child from a nation other than one’s native country.
• Carrying that adopted child to the adoptive parent’s native country.
• The adoption cycle for intra and between nations are similar i.e., transfer of directly over a child from a biological parent or guardian to the planned adoptive parent/s.

Laxmikant Pandey vs Union of India case is the most important in the area of inter-country adoption.

In 1982, a petition was recorded under Article 32 of the Constitution by Advocate Lakshmi Kant Pandey alleging malpractices and trafficking of children by social organizations and voluntary agencies that offer Indian children for adoption overseas.