8888677771 | UPSC Essentials | Weekly news express — Same-sex marriage verdict, Vienna Convention, and more : Key takeaways and points to ponder | UPSC Current Affairs News

What does the 1961 Vienna Convention say about recalling diplomats?

How have Multilateral Development Banks traditionally lent in countries such as India?

And more…

WHY IN NEWS?

— A five-judge Constitution Bench of the Supreme Court headed by Chief Justice of India (CJI) D Y Chandrachud refused to grant legal status to same-sex marriages.

KEY TAKEAWAYS

1. All five judges on the Bench agreed that there is no fundamental right to marry under the Constitution.

— Marriage, according to the court, is an institution set up under law — and same-sex couples do not have a right to participate in it unless the law permits them to do so. The fact that it does not permit them at this moment, according to the court, is not unconstitutional.

2. All five judges also unanimously agreed that it is not possible to tweak the Special Marriage Act, 1954 by using gender neutral language to allow same-sex marriage.

— The petitioners had asked the SC to interpret the word marriage as between “spouses” instead of “man and woman”. Alternatively, the petitioners had asked for striking down provisions of the SMA that are gender-restrictive.

— CJI Chandrachud said striking down the SMA provisions would jeopardise the legal framework for interfaith and inter-caste couples. He added that interpreting the SMA in a gender neutral way would amount to “judicial lawmaking”, which would violate the doctrine of separation of powers.

— The Special Marriage Act, 1954 — a legislation that was enacted to enable inter-faith marriages, and the challenge against which formed the foundation of the hearings — was upheld in its current form, i.e., permitting marriages only between a ‘man’ and a ‘woman’.

3. Four of the five judges — CJI Chandrachud, Justice Kaul, Justice Bhat, and Justice Narasimha — wrote individual opinions. Justice Bhat, Justice Kohli (who concurred with Justice Bhat), and Justice Narasimha formed the majority, while the CJI and Justice Kaul wrote minority opinions in favour of extending civil union to same-sex couples.

— A ‘civil union’ refers to the legal status that allows same-sex couples specific rights and responsibilities that are normally conferred upon married couples. Although a civil union resembles a marriage, it does not have the same recognition in personal law as marriage.

— Accepting the arguments made by the Solicitor General, the court found that only an elected legislature is competent to make such interventions. This is because granting same-sex couples the right to marry or enter into a union will involve changes to a vast range of “legislative architectures” and policies.

— When two persons enter into a marriage or a civil union, a host of tangible and intangible benefits are made available to them in areas such as insurance, banking, adoption, succession, pension, healthcare, etc.

— Given the complexity involved in aligning these frameworks (which are wholly based on heterosexual unions) with the right of queer persons to marry, the court found that only an elected legislature with the ability to consult a wide range of stakeholders is competent to intervene.

— Justice Narasimha observed that the impact of altering these legal frameworks for queer couples needs to be reviewed by the legislature, as it is “constitutionally suited” to do so.

— The CJI in his opinion, and Justice Kaul in his opinion concurring with the CJI, said that the right to form unions emanates from the fundamental right to freedom of speech and expression, and the right to life. The minority view also said that with civil union status, same-sex couples must be extended the “bouquet of rights” that heterosexual couples are entitled to.

4. On the “bouquet of rights”, all five judges took note of the Centre’s stand that a high-level Cabinet committee will look into rights that can be conferred on non-heterosexual couples. This would range from opening joint bank accounts, same-sex spouses being a beneficiary for provident fund, pension or inheritance to such spouses, being able to take medical decisions for the other spouse, etc.

5. One of the benefits that flows from marriage — the ability to adopt children — was specifically at issue before the court.

— Since a same-sex couple cannot marry under Indian law, it follows that they cannot also adopt children as a couple. However, since the Juvenile Justice Act 2015 permits a single person to adopt a child, same-sex couples were able to adopt children by designating one of the partners as the legal parent.

— In 2022, however, the Central Adoption Resource Authority (CARA) put paid to this arrangement by issuing the Adoption Regulations, which require a couple to be in a two-year stable marital relationship to be eligible for adoption. Over and above this, a circular was also issued prohibiting a person from adopting a child if that person was in a live-in relationship. Consequently, queer couples became ineligible to adopt.

— As part of their challenge, the petitioners specifically questioned the constitutionality of this arrangement. While the CJI and Justice Kaul struck down the regulations and the circular for violating the right to equality and non-discrimination, the majority, led by Justice Bhat, found that the judiciary was ill-equipped to consider the potential impact of extending the right to jointly adopt children to queer couples.

— Ultimately, the court shifted the burden to the executive — and encouraged it to reconsider the laws on adoption in line with the best interests and welfare of children.

FYI: What has changed for queer couples?

— The judgment has refused to recognise queer marriages or civil unions. It does not open any doors — only a few windows that were already unlocked.

— The court stated that a queer person has the right to choose an emotional, intimate and/ or live-in partner, even if such a relationship does not amount to a marriage or civil union.

— This is largely a restatement of the law laid down in ‘Navtej Singh Johar’, where the court had decriminalised homosexuality by striking down Section 377 of the Indian Penal Code, as well as ‘Puttaswamy’, where it had recognised a queer person’s sexual autonomy as a facet of their fundamental right to privacy.

— Ultimately, the court — both the majority as well as the minority — failed to provide the only relief that the petitioners had asked for: a simple declaration that the institution of marriage should be open to two consenting adults, irrespective of their sex, gender identity, or sexual orientation.

— What they got instead was an acknowledgment that family laws disproportionately exclude the queer community — a well-recognised predicament and, in fact, the very reason that had compelled the petitioners to move the court.

(Source: Why Supreme Court’s same-sex marriage verdict opens no doors for queer people)

Point to ponder: Stating that the current laws against discrimination of people based on their sexual orientation are fragmented, the Supreme Court on Tuesday said that there is a need for a new law to end bias. Discuss.

1. MCQ:

Which of the following is a fundamental right?

(a) Right to information

(b) Right to marry

(c) Right to property

(d) Right to education

WHY IN NEWS?

— Amid the ongoing standoff between India and Canada, the Canadian government announced it has recalled 41 diplomats posted in India, and their family members, on Friday (October 20).

— Canada’s Foreign Minister Melanie Joly said this was because they were “in danger of having immunity stripped on an arbitrary date” and that would have “put their personal safety at risk”.

— Earlier this month, India had sought ‘parity’ with Canada, asking it to downsize its diplomatic staff here. India has about 20 diplomats in Canada and said there should be a similar number of Canadian diplomats in India as well.

— The move followed a row over Canadian Prime Minister Justin Trudeau’s remarks in Canadian Parliament in September 2023. He had then claimed a potential Indian government link to the killing of pro-Khalistan separatist leader Hardeep Singh Nijjar in Canada earlier this year — which India rejected, terming the claims to be “absurd” and “motivated”.

— Now, the US and UK have backed Canadian diplomats’ presence. Further, they spoke of the Vienna Convention on Diplomatic Relations, which has also been mentioned by the Indian Ministry of External Affairs (MEA and the Indian Minister of Foreign Affairs, S Jaishankar.

— On Saturday, the US and UK backed Canada, stating that diplomats are required to be on the ground to resolve differences. Notably, the two countries are also part of the Five Eyes intelligence-sharing alliance with Canada, which also includes Australia and New Zealand.

KEY TAKEAWAYS

What has India said?

— India rejected Joly’s contention, where she said that the “unilateral revocation of the diplomatic privilege and immunity is contrary to international law” and a violation of the Convention on Diplomatic Relations.

— In a press release, the MEA said, “The state of our bilateral relations, the much higher number of Canadian diplomats in India, and their continued interference in our internal affairs warrant a parity in mutual diplomatic presence in New Delhi and Ottawa.”

— It added, “Our actions in implementing this parity are fully consistent with Article 11.1 of the Vienna Convention on Diplomatic Relations.”

What is the Vienna Convention on Diplomatic Relations?

— The Vienna Convention on Diplomatic Relations (1961) is a United Nations treaty that set some common principles and terms on how countries must treat each other’s diplomatic representatives, in order to ensure friendly relations and maintain proper communication channels between countries.

— One prominent example of such principles is that of diplomatic immunity. It’s the privilege of exemption from certain laws and taxes granted to diplomats by the country in which they are posted. It was framed so that diplomats can function without fear, threat or intimidation from the host country.

— Diplomatic immunity flows from two conventions, popularly called the Vienna Conventions — the 1961 Convention and the Convention on Consular Relations, 1963.

— The 1961 Convention says, “Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”

— Today, 193 countries have ratified the convention, meaning they agree it should be legally binding on them. Ratification means that a country should seek approval for the treaty on the domestic level and enact a law in their country to give effect to it. India ratified it through the Diplomatic Relations (Vienna Convention) Act of 1972.

JUST FYI: What does the 1961 Vienna Convention say about recalling diplomats?

— Article 9 of the convention states that the receiving State may, at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or unwelcome.

“In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission,” it says.

— Further, if the sending State refuses or fails within a reasonable period to carry out its obligations here, that is if they refuse to recall their diplomats, the receiving State may refuse to recognise the person concerned as a member of the mission.

— Article 11, cited by the MEA in its press release, says, “In the absence of specific agreement as to the size of the mission, the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission.”

— Around 2017, Russia and the United States also asked for each other’s diplomats to be recalled over the principle of parity and reduced the presence of their missions, following a low in their relations.

Point to ponder: In the diplomatic row with Canada, India has done nothing wrong. Comment.

2. MCQ:

Consider the following lines with reference to 1961 Vienna Convention :

“In the absence of specific agreement as to the size of the mission, the receiving State may require that the size of a mission be kept within limits considered by it to be reasonable and normal, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission.”

These lines are a part of:

(a) Article 8

(b) Article 9

(c) Article 11

(d) Article 12

Cash for query row: How MPs ask questions in Lok Sabha?

WHY IN NEWS?

— Trinamool Congress MP Mahua Moitra on Friday (October 20) said she welcomes answering questions from the Central Bureau of Investigation (CBI) and the Lok Sabha Ethics Committee pertaining to ‘cash for query’ allegations against her.

KEY TAKEAWAYS

— When in session, Lok Sabha generally starts with Question Hour — a one hour time period provided to MPs to ask questions of ministers and hold them accountable for the functioning of their ministries.

What is the procedure for raising the questions?

— The procedure for raising questions is governed by Rules 32 to 54 of the “Rules of Procedure and Conduct of Business in Lok Sabha” and Directions 10 to 18 of the “Directions by the Speaker, Lok Sabha‟.

— To ask a question, an MP has to first give a notice addressed to the lower house’s Secretary-General, intimating their intention to ask a question.

— The notice usually contains the text of the question, the official designation of the Minister to whom the question is addressed, the date on which the answer is desired, and the order of preference, in case the MP tables more than one notice of questions for the same day.

— “A Member is allowed to give not more than five notices of questions, both for oral and written answers, in all, for any day. Notices received in excess of five from a Member for a day, are considered for the subsequent day(s) concerning that Minister(s) during the period of that session only,” according to a government document, ‘Question Hour in Lok Sabha’.

— Usually, the period of notice of a question isn’t less than 15 days.

— There are two ways through which MPs can submit the notices of their questions. First, through an online ‘Member’s Portal’, where they have to enter their ID and password to get access. Second, through the printed forms available in the Parliamentary Notice Office.

— The next stage is when the Speaker of Lok Sabha examines the notices of the questions in the light of the laid out rules. It is the Speaker, who decides if a question, or a part thereof, is or isn’t admissible.

What are the conditions for the admissibility of questions?

— There are numerous rules that govern the admissibility of a question raised by an MP. For example, questions shall not ordinarily contain more than 150 words.

— They shouldn’t contain arguments, defamatory statements, refer to the character or conduct of any person except in their official or public capacity. Queries raising larger issues of policy are not allowed, for it is not possible to enunciate policies within the limited compass of an answer to a question.

— Besides these, a question isn’t admissible if its subject matter is pending judgment before any court of law or any other tribunal or body set up under law or is under consideration before a Parliamentary Committee.

— A query also can’t seek information on matters which may weaken the unity and integrity of the country.

JUST FYI: What are the different types of questions?

There are four different types of questions: starred, unstarred, short-notice questions and questions addressed to private Members.

— A starred question is asked by an MP and answered orally by the Minister-in-charge. Each MP is allowed to ask one starred question per day. Starred questions have to be submitted at least 15 days in advance (so that the Minister-in-charge has the time to prepare the answers) and only 20 questions can be listed for oral answers on a day. When a question is answered orally, supplementary questions can be asked thereon.

— An unstarred question receives a written reply from the Ministry. These also need to be submitted at least 15 days in advance. Only 230 questions can be listed for written answers in a day. Unlike starred questions, unstarred questions don’t permit any follow-up questions.

While starred questions are better suited to inquire about the government’s views on issues and its policy inclination, unstarred questions are more conducive for getting answers to queries related to data or information, according to a report by PRS Legislative Research.

— Short notice questions are ones pertaining to a matter of urgent public importance. They can be asked with less than 10 days’ notice, with reasons for the short notice. Like a starred question, they are answered orally, followed by supplementary questions.

— The question to a private Member is addressed to the MP themselves. It is asked when the subject matter pertains to any Bill, Resolution or any matter relating to the Business of the House for which that MP is responsible.

“For such questions, the same procedure is followed as in the case of questions addressed to a Minister with such variations as the Speaker may consider necessary or convenient,” the government document said.

Point to ponder: What is the importance of raising questions in Parliament?

3. MCQ:

With reference to questions asked in Parliament, consider the following statements:

These questions are ones pertaining to a matter of urgent public importance. They can be asked with less than 10 days’ notice. They are answered orally, followed by supplementary questions.

(a) Starred questions

(b) Unstarred questions

(c) Short notice questions

(d) None of the above

WHY IN NEWS?

— A G20 expert panel on strengthening Multilateral Development Banks (MDBs), such as the World Bank and the Asian Development Bank, wants the institutions to shift from financing individual projects to prioritising programmes with sectoral focus and long-term transformation plans, as identified by national governments.

KEY TAKEAWAYS

— According to the expert group, MDBs should focus their operations – financial as well as analytical – on helping national governments create and operationalise their respective country platforms for the highest priority sustainable development goals (SDG) “as evidenced by the commitment of country leadership and degree of national investment.”

What are Multilateral Development Banks?

— Multilateral Development Banks are institutions whose members include multiple developed and developing countries, which have to fulfil certain lending obligations to facilitate developmental objectives.

— They provide financing and technical assistance to countries and organisations undertaking projects across sectors including transport, energy, urban infrastructure, and waste management.

— Usually, developed countries in MDBs contribute to the lending pool while developing countries primarily borrow from these institutions to fund development projects.

Why are experts advocating for reforms within MDBs?

— The G20 expert group cites the climate crisis to argue that while stakeholders worldwide know what needs to be done to mitigate it, they “lack mechanisms to make this happen on a global scale, especially in emerging markets and developing economies (EMDEs).”

— According to the expert group, a reformed MDB ecosystem can equip stakeholders to better deal with global challenges in effective ways.

— It has recommended that MDBs operate more in sync with the developmental priorities of individual nations.

— Additionally, the expert group called for bringing private sector engagement to the centre of MDB operations by breaking away from the culture of limited operational interaction between their private and sovereign financing arms.

— In the group’s view, greater coordination between multiple stakeholders is crucial to the success of MDBs.

— To mitigate coordination failures, the expert group has called for greater involvement of national governments to develop “a home-grown unified vision of goals, policies, investments and financing.”

— These recommended reforms are to “help address multiple coordination failures among domestic and international stakeholders, public and private.”

— The expert group also notes that the existing perception and practices of MDBs have adversely impacted their engagement with the private sector. MDBs are often seen as bureaucratic and risk averse, which deters the private sector from being more involved in assisting with financing.

— Given that MDBs need to ramp up financing to $390 billion by 2030, the private sector can play a pivotal role in making that happen by reversing the current trend of “disappointingly low” private financial flows to EMDEs.

— As per the group, the private sector’s involvement depends on “MDBs embracing partnerships with the private sector, taking on more risk – especially credit risk and policy risk – and then managing it properly.”

JUST FYI: How have Multilateral Development Banks traditionally lent in countries such as India?

— MDBs have played a crucial role in India’s development journey by financing key infrastructure projects with longer gestation periods.

— The World Bank, established in 1944, has committed to lending worth $97.6 billion in India, including all active and closed projects. Of the total commitments, $18.7 billion (19 per cent) have been committed to projects in the public administration sector, $14.8 billion (15 per cent) to the agriculture, fishing and forestry sector, and $10.6 billion (11 per cent) to the transport sector.

— The Manila-based Asian Development Bank, formed in 1969, has cumulatively committed to assistance worth $59.7 billion in India for project and technical assistance. Of the total assistance, $20.2 billion (34 per cent) has been committed to the transport sector, $15 billion (25 per cent) to the energy sector, and $6.7 billion (10 per cent) to the urban infrastructure sector.

— The Beijing-headquartered Asian Infrastructure Investment Bank (AIIB), which was formed in 2016, has approved financing worth $9.9 billion in India. Of this, $4.2 billion (42 per cent) has been approved for the transport sector, $1.4 billion (14 per cent) for the energy sector, and $1.25 billion (12.6 per cent) for economic resilience.

— Of the total 42 projects for which AIIB has approved financing, 29 are sovereign projects and 13 are non-sovereign projects.

— The European Investment Bank, established in 1958, has signed off on 22 projects in India with a cumulative value of Euro 4.5 billion. Of the total amount, Euro 2.45 billion were signed off for the transport sector and Euro 1.5 billion for the energy sector.

Point to ponder: Multilateralism, as the most transparent and preferred mode of international cooperation, has been undergoing constant evolution in scope, dimension, and outcomes. Discuss.

4. MCQ:

Which of the following pairs is not correctly matched?

Bank                                                                                          Headquarter

(a) Asian Infrastructure Investment Bank                Beijing

(b) Asian Development Bank                                           Manila

(c) European Investment Bank                                       Berlin

(d) World Bank                                                                      Washington, D.C.

 

WHY IN NEWS?

— The Delhi High Court has found “large-scale infringement” in the reproduction on the Internet “of… copyrighted works” of the Bhaktivedanta Book Trust, which publishes books and commentaries on Indian religious philosophy and spiritualism, especially classic Vaishnava texts.

— In an order on September 21, Justice Prathiba M Singh allowed the trust to approach tech companies Google and Meta, who own YouTube and Instagram respectively, with takedown orders against those reproducing copyrighted works on the Srimad Bhagavad Gita.

KEY TAKEAWAYS

— The Bhaktivedanta Book Trust was established in 1970 by Bhaktivedanta Swami Prabhupada (Srila Prabhupada), who also founded the Gaudiya Vaishnava religious organisation International Society for Krishna Consciousness (ISKCON), colloquially known as the Hare Krishna Movement.

Are religious texts protected by copyright?

— Religious scriptures are in the public domain, and in copyright law, no exclusive intellectual property rights apply to creative works in the public domain. So, the Old Testament and New Testament, or the King James Version (KJV) of the Bible, one of the most widely used translations of the Bible, are not protected by copyright.

— However, many modern translations of the Bible are copyright-protected because they represent new creative works by the translators.

— For example, the New International Version (NIV), which was first published in 1978, is copyright-protected, and permission would be needed — or the terms set by the holder of the copyright would have to be followed — in order to use the NIV text for certain purposes.

—Also, while the Ramayana and Mahabharata are not protected by copyright, the television series Ramayana created by Ramanand Sagar or B R Chopra’s Mahabharata are “transformative works” that would be protected.

JUST FYI: What does the copyright law in India say?

— Indian copyright law protects “original work” — a creative and independently created expression fixed in a tangible medium. The law grants the creator/ author of the work the exclusive right to “use, reproduce, distribute, perform, and display their work”.

— The law also protects transformative work which is a creative/ artistic work that takes existing material (text, music, art) and significantly modifies, reinterprets, or builds upon it to create something new and distinct. For example, the comedy group AIB’s 2015 spoof video ‘Every Bollywood Party song’ starring the late actor Irrfan, was a parody of rapper Yo Yo Honey Singh’s ‘Party all night’, and it would not amount to infringement as it can be termed as inspired work.

COMPULSORY READ | UPSC Essentials: One word a day- Intellectual Property Rights (IPR)

Point to ponder: A call for ethical attribution is more helpful than a legal claim to intellectual property. Discuss.

5. MCQ:

Consider the following statements:

1. While the Ramayana and Mahabharata are not protected by copyright, the television series Ramayana or Mahabharata are “transformative works” that would be protected.

2. Religious scriptures are in the public domain, and in copyright law, no exclusive intellectual property rights apply to creative works in the public domain.

Which of the above statement/s is/are correct?

(a) Only 1

(b) Only 2

(c) Both 1 and 2

(d) Neither 1 nor 2

ANSWERS TO MCQs: 1 (d), 2 (c), 3 (c), 4 (c), 5 (c)

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