1. Applicability of POSH Act to Political Parties: Legal Challenges and Insights

Context: The Supreme Court recently heard a PIL urging the application of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (commonly known as the POSH Act) to political parties.

• The petitioner highlighted the lack of Internal Complaints Committees (ICCs) in political parties for addressing sexual harassment complaints.
• The Court directed the petitioner to approach the Election Commission of India (ECI) as the appropriate authority to encourage political parties to establish mechanisms aligned with the POSH Act.
• This case has sparked debate over the applicability of the POSH Act to political organisations, which often have non-traditional workplace structures.

POSH Act, 2013: Safeguarding Women in Workplaces:

Background:

• Inspired by the Vishakha Guidelines issued by the Supreme Court in the landmark Vishakha v. State of Rajasthan (1997) case.
• Administered by the Union Ministry of Women & Child Development (MoWCD), the Act aims to provide a robust redressal mechanism for workplace sexual harassment.

Objective:

• To protect women’s rights at work and create safer workplaces.
• To function as a preventive and redressal mechanism for workplace grievances.

Challenges in Applying the POSH Act to Political Parties:

Legal Ambiguities:

• Section 3(1) of the POSH Act ensures protection against sexual harassment at workplaces and broadly defines a “workplace” to include public and private organisations, sports venues, hospitals, homes, and locations visited during employment.
• Despite this broad definition, its application to political parties remains unclear due to their unique structures.

Kerala HC Ruling:

• In the case of Centre for Constitutional Rights Research and Advocacy v. State of Kerala (2022), the Kerala High Court ruled that:
  • Political parties lack a clear employer-employee relationship with their members.
  • They do not fit the definition of a workplace under the POSH Act.
  • Hence, political parties are not legally obligated to establish ICCs.

Structural Challenges:

1. Undefined Workplaces:
   • Party workers often operate in temporary or field-based settings, making it hard to identify a defined “workplace.”
2. Ambiguous Employer Roles:
   • Political parties lack a clear hierarchy to identify the “employer” responsible for forming ICCs.

Expansive Definitions in POSH Act:

• The Act includes:
  • Temporary or contractual workers, potentially covering party workers.
  • Locations visited during employment, which could apply to political activities.
• Party constitutions outlining organisational hierarchies may help identify employers responsible for ICCs.

Current Mechanisms in Political Parties:

• Political parties often rely on internal disciplinary committees, such as:

• The Congress’ hierarchical committees.
• The BJP’s Disciplinary Action Committees.
• However, these:
  • Address broader issues like moral turpitude but lack specific provisions for sexual harassment.
  • Do not include women or external members, as required by ICCs under the POSH Act.

ECI’s Role in Ensuring Compliance:

Legal Authority:

• Under Article 324 of the Constitution, the ECI has the power to supervise elections for Parliament, state legislatures, and certain offices.
• The Representation of People Act, 1951 (RP Act) defines its authority.

Ambiguities in Enforcing Other Laws:

• While ECI’s authority under the RP Act is clear, its role in enforcing laws like the RTI Act, 2005, or the POSH Act is less defined.
• Example: Despite a 2013 CIC ruling declaring political parties as public authorities under the RTI Act, most parties have not complied.

Advisory Approach:

• The ECI often uses advisories to encourage compliance:
  • For instance, it directed parties not to involve children in campaigning, aligning with the Child Labour Act, 1986.

Promoting Transparency:

• The ECI regularly publishes party-related information, such as financial contributions and annual audited accounts, on its website.

Conclusion:

The question of applying the POSH Act to political parties highlights the need for greater accountability and protection mechanisms within political organisations.

• Addressing structural and legal ambiguities is essential to ensure political parties comply with gender-sensitive workplace norms.

• A proactive approach from ECI, combined with legal reforms, could pave the way for safer and more inclusive political environments.

2. Sanganer Open Jail: A Model of Rehabilitation and the Legal Battle Over Land

Context: A Supreme Court-appointed commissioner will visit the Sanganer open jail, one of the largest in India, following a dispute over the Rajasthan government’s plan to construct a hospital on the jail’s land.

• The Supreme Court, during a November 25 hearing, instructed the commissioner to inspect the site and submit a report within four weeks.
• This has reignited discussions on the importance of preserving open prisons as spaces for rehabilitation.

Understanding Open Prisons in India:

Definition:

As per the Model Prisons and Correctional Services Act, 2023, open prisons are correctional institutions that offer greater freedom to prisoners to aid their rehabilitation and reintegration into society.

Features of Open Prisons

• Minimal Security: Inmates engage in activities like agriculture and other community jobs.
• Rehabilitation-Oriented: These facilities aim to reduce overcrowding in traditional prisons and prepare prisoners for life post-release.
• Family Living Spaces: Some allow prisoners to live with their families under certain restrictions.

State-Level Variations:

• Since prisons are a state subject, state governments define the rules for open prisons, including eligibility criteria based on crime severity, conduct, and sentence served.

History of Open Prisons in India:

Early Beginnings:

• The first open jail in independent India was set up in Lucknow, Uttar Pradesh, in 1949, followed by other facilities in 1952.
• The Hague Conference in 1952 proposed open-air camps to provide a near-community life for prisoners completing part of their sentence.

Justice Mulla Committee (1980-83):

The All-India Committee on Jail Reform highlighted:

• Lack of legal frameworks for open prisons in many states.
• Recommendations to:
  • Use land near closed prisons for open facilities.
  • Engage inmates in productive activities like agriculture and construction projects.
  • Ensure uniform wages, as pay varied across states.

Current Status:

According to Prison Statistics of India 2022:

• There are 91 open jails across 17 states, with 4,473 inmates against a capacity of 6,043.
• Rajasthan leads with 41 open jails, followed by Maharashtra (19).

Sanganer Open Jail: A Model for Rehabilitation

Historical Significance:

• Established in 1963, the Sanganer open jail (also known as Sampurnanand Khula Bandi Shivir) has set a benchmark for rehabilitation in India.
• Unlike other open jails, which faced closures due to challenges like prison breaks, Sanganer has operated continuously.

Unique Features:

1. Family Integration:
   • Inmates can live with their spouses and children, fostering a family-like environment.

2. Self-Sufficiency:
   • Prisoners manage their own homes, pay for utilities, and earn livelihoods through community jobs like running shops.
3. Self-Governance:
   • The jail has bandi panchayats, where inmates manage daily roll calls and oversee internal governance.
4. Community Facilities:
   • The jail includes a primary school, anganwadis, and a playground.
   • Inmates work in local jobs, promoting financial independence.

Selection Criteria:

• Unlike most open jails that admit inmates nearing the end of their sentences, Sanganer requires prisoners to have completed 6 years and 8 months of their term with good conduct.

Legacy:

• The Justice Mulla Committee recommended Sanganer as the “final stage in the open jail movement.”
• Its success has inspired many similar open-air camps in Rajasthan, making the state a leader in open prison initiatives.

The Legal Dispute Over Sanganer Jail Land:

Background: Supreme Court’s Ruling on Open Jail Areas

• In May 2024, the Supreme Court ruled that the areas designated for open jails must not be reduced, emphasizing their role in prisoner rehabilitation.

Contempt Petition Filed:

• A social worker filed a contempt petition against the Rajasthan government, opposing its plan to allocate 21,948 square meters of jail land for a hospital.
• The petition argues that such a move would disrupt the unique rehabilitation model of Sanganer.

State Government’s Position:

• The Rajasthan government:
  • Denies plans to reduce the jail’s area.
  • Claims some structures for prisoners were unauthorized and proposes relocating inmates to new shelters.

Supreme Court’s Stance:

• The Supreme Court emphasized balancing the needs of the jail with the hospital’s importance for the community.
• It appointed a court commissioner to inspect the site and prepare a report within four weeks.

Conclusion:

The Sanganer open jail represents a progressive model of prisoner rehabilitation that balances freedom, responsibility, and integration into society.

• Preserving such unique spaces is crucial to maintaining India’s prison reform initiatives.
• As the legal battle unfolds, it underscores the need for balanced development that respects both community needs and rehabilitation models.

3. 1st India Maritime Heritage Conclave (IMHC), 2024

Context: The Ministry of Ports, Shipping, and Waterways organized the inaugural India Maritime Heritage Conclave (IMHC), 2024, showcasing India’s illustrious maritime past and its vision to become a global maritime leader.

Key Highlights of the Conclave:

• Showcasing Maritime Achievements: India’s historical maritime triumphs and its modern aspirations as a maritime powerhouse were prominently featured.
• Developing Maritime Heritage: The Ministry is constructing the National Maritime Heritage Complex (NMHC) at Lothal, Gujarat, under the Sagarmala Programme, aimed at creating the world’s largest maritime heritage complex.

India’s Rich Maritime Heritage:

Early Days (3000–2000 BC):

• The Indus Valley Civilization (IVC) had active maritime trade links with Mesopotamia, marking the beginnings of India’s seafaring history.

Vedic Age (2000–500 BC):

• The Rig Veda contains the earliest references to maritime activities, hinting at the significance of waterways in ancient India.

Nandas and Mauryas (500–200 BC):

• The Magadh Navy is regarded as the world’s first recorded naval force.
• Chanakya’s Arthashastra mentions the ‘Department of Waterways’, underscoring the strategic importance of maritime infrastructure.

Satavahana Dynasty (200 BC–220 AD):

• The Satavahanas were the first Indian rulers to issue coins depicting ships, symbolizing their maritime prowess.

Gupta Dynasty (320–500 AD):

• This period saw the development of ocean navigation and flourishing maritime trade, as noted by travelers Fa-Hein and Hiuen Tsang.

Southern Dynasties:

• The Cheras, renowned for their prominent ports like:
  • Tyndis (modern-day Periyapattanum, near Kochi).
  • Muziris (modern-day Pattanam, also near Kochi).

The Marathas:

• Under Shivaji, the Maratha navy evolved into a formidable force, commanding a fleet of over 500 ships.

Looking Ahead: India’s Maritime Vision:

The India Maritime Heritage Conclave highlighted the nation’s historical maritime achievements while laying the groundwork for its aspirations as a global maritime powerhouse. With projects like the NMHC at Lothal, India is not just preserving its rich maritime history but also positioning itself as a leader in global maritime affairs.

4. How a distant galaxy gave a glimpse of Milky Way in its infancy

Context: NASA’s James Webb Space Telescope (JWST) has captured an extraordinary glimpse of a distant galaxy, Firefly Sparkle, located approximately 13 billion light-years away.

• This infant galaxy, formed only a few hundred million years after the Big Bang, provides critical insights into what our Milky Way might have looked like during its early years.
• Named for its star clusters, resembling bioluminescent fireflies, Firefly Sparkle unveils the secrets of galactic evolution.

5. 2024 Arctic Report Card Reveals Troubling Climate Trends

Context: The 2024 Arctic Report Card, released by the National Oceanic and Atmospheric Administration (NOAA), highlights alarming shifts in the Arctic environment. Once a major carbon sink, the Arctic is now turning into a carbon source, driven by the accelerating impacts of climate change.

About NOAA: This U.S. federal agency focuses on understanding and predicting environmental changes, managing coastal and marine ecosystems, and supporting informed policy decisions.

Since its launch in 2006, the Arctic Report Card has provided annual updates on the Arctic’s environmental state, comparing current conditions to historical data.

Key Highlights of the Report:

1. Accelerated Warming in the Arctic:

• Unprecedented Heat: The Arctic is warming at an extraordinary pace.
  • 2024 was the second-warmest year since record-keeping began in 1900.
  • This year’s Arctic summer was the third warmest, with extreme heat waves recorded in Alaska and Canada.

2. The Arctic Tundra Becomes a Carbon Source:

• Permafrost Thaw: Thawing permafrost is releasing vast amounts of carbon dioxide and methane, fueling global warming.
• Wildfires on the Rise:
  • Frequency and Intensity of wildfires are increasing, releasing more carbon emissions.
  • Extended Wildfire Season: The Arctic is now experiencing longer wildfire seasons.

3. Decline in Sea Ice:

• Reduced Ice Extent: The extent and thickness of Arctic sea ice have diminished drastically over the past few decades.
• Heat Absorption: Less sea ice exposes more dark ocean surfaces, which absorb heat and contribute further to warming.
• Melting Glaciers:
  • Arctic glaciers and the Greenland Ice Sheet are losing mass, contributing significantly to global sea-level rise.

4. Impact on Wildlife and Communities:

• Decline in Reindeer and Caribou: Climate change is disrupting ecosystems, leading to population declines of reindeer, affecting Indigenous communities dependent on them for food and culture.
• Indigenous Challenges: Rapid environmental changes pose significant threats to traditional livelihoods and practices.

Global Implications of Arctic Changes:

• Coastal Flooding and Extreme Weather: Melting ice and rising sea levels intensify coastal flooding and extreme weather events worldwide.

Carbon Storage Loss: The Arctic’s dwindling capacity to store carbon emphasizes the urgency of reducing greenhouse gas emissions to prevent further warming.

The Arctic: A Unique and Vital Region:

What is the Arctic?

• The Arctic encompasses the northernmost polar region of Earth, including the Arctic Ocean, surrounding seas, and parts of eight countries:

Alaska (U.S.), Canada, Finland, Greenland, Iceland, Norway, Russia, and Sweden.

• Known for its cold climate, the Arctic’s temperatures frequently drop below freezing, creating a fragile ecosystem highly vulnerable to climate change.

Geopolitical Importance of the Arctic:

• The region is rich in natural resources, such as oil, natural gas, and minerals, attracting international interest and sparking geopolitical competition for control.

India’s Role in the Arctic:

• Historic Engagement:
  • Signed the Svalbard Treaty in 1920, allowing access to Arctic territories for scientific and economic purposes.
  • Began its Arctic research program in 2007, followed by the establishment of the Himadri research base in Svalbard, Norway, in 2008.
• Observer Status in the Arctic Council: India has been an observer in the Arctic Council since 2013.
• Arctic Policy 2022: India announced a focused policy to engage in climate research, with the National Centre for Polar and Ocean Research serving as the nodal agency.

Call for Action:

The 2024 Arctic Report Card serves as a stark reminder of the urgent need to combat climate change. As the Arctic transitions from a carbon sink to a carbon source, global efforts to reduce greenhouse gas emissions are critical to safeguard the planet’s future.

6. Switzerland Suspends India’s Most Favoured Nation (MFN) Clause

Context: Switzerland recently announced its decision to suspend the most favoured nation (MFN) clause in its Double Taxation Avoidance Agreement (DTAA) with India, effective from January 1, 2025.

Understanding the Most Favoured Nation (MFN) Clause:

What is the MFN Clause?

The Most Favoured Nation (MFN) clause is a fundamental principle in international agreements, including tax treaties, ensuring equal treatment for all parties.

• Equal Treatment: If one country offers favorable tax rates or conditions to another, it must extend those same benefits to all other countries covered by the treaty.
• No Favouritism: The clause is designed to prevent any country from being treated less favorably than any other in trade or taxation matters.

WTO MFN:

• Applicable: The MFN principle applies to World Trade Organization (WTO) agreements, including the General Agreement on Tariffs and Trade (GATT), General Agreement on Trade in Services (GATS) (Article 2), and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
• Exceptions: While countries can set up free trade agreements and offer special access to developing countries, they can also impose barriers against unfairly traded products from specific countries, especially in services.

India-Switzerland MFN:

• Recognized by Switzerland: Switzerland had previously recognized MFN status for India under its DTAA.
• DTAA Between India and Switzerland: The Double Tax Avoidance Agreement was signed in 1995 and amended in December 2011.

What is Withholding Tax (WHT)?

• Definition: Withholding Tax (WHT), or retention tax, requires an individual, whether resident or non-resident, to withhold tax when making certain payments such as rent, commission, or salary.
• Application: The applicable withholding tax rate is determined by the Income Tax Act, 1961 or the relevant DTAA, whichever is lower.
• Non-Resident Taxation: Non-residents are liable to pay taxes in India on source income, including interest, royalties, fees for technical services, and income arising from business connections or properties in India.
• WHT Rate: A person benefiting from a perquisite or benefit arising from a business or profession in India can withhold tax at a rate of 10% of the value of such benefit.

Why Has Switzerland Suspended the MFN Clause?

Recent Legal Dispute – The Nestlé Case (2023):

• Nestlé’s Claim: The Swiss company Nestlé sought a refund of withholding tax paid on dividends, invoking the MFN clause under the India-Switzerland tax treaty.
• OECD Provision: The case involved applying lower tax rates on dividends to countries like Colombia and Lithuania, which negotiated new tax terms after joining the OECD.
• Supreme Court Ruling: The Supreme Court ruled that such automatic adjustments require a formal notification under Indian law, not just a blanket application.
• Swiss Reaction: As a result of this ruling, Switzerland decided to suspend the MFN clause under the India-Switzerland tax treaty.

Impacts of MFN Suspension:

• Higher Tax Liabilities for Indian Companies:
  • Indian companies receiving dividends from Switzerland will face an increased tax burden, with the withholding tax on those dividends rising to 10% from 5%.
• Effects on Swiss Investments in India:
  • Swiss companies receiving dividends from Indian subsidiaries will continue to face the 10% withholding tax, as this rate is already applicable under the India-Switzerland DTAA.
• EFTA Investments Unaffected:
  • The suspension is unlikely to impact investments into India from the European Free Trade Association (EFTA), as these are already subject to the 10% withholding tax.
• No Change for Other DTAA Benefits:
  • Indian companies operating in Switzerland can still avail themselves of other benefits provided under the India-Switzerland DTAA, such as tax relief on royalties and fees for technical services.
• Re-evaluation of MFN Clauses by Other Countries:
  • This move could prompt other nations to reconsider how the MFN clause is applied in their own tax treaties with India, especially if similar legal rulings arise elsewhere.

What Lies Ahead?

To maintain predictability, equity, and stability in the international tax framework, there is a need to align treaty partners on the interpretation and application of tax treaty clauses.

• Proactive Negotiations: Clarifying and harmonizing interpretations of treaty provisions are essential to safeguard the interests of Indian firms operating abroad.