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ANTI HIJACKING ACT, 2016: AN ANALYSIS

The hijacking incidents which have taken place in the recent past including the hijacking of Indian Airlines
flight No. IC-814 in 1999 and the hijacking incident in the United States of America on the 11th September,
2001 have shown that civilian aircrafts were hijacked and used as missiles for causing mass destruction.
Subsequent attempts worldwide to hijack aircrafts and the threat by the outlawed groups or organisations have
necessitated a fresh and thorough examination of the preparedness of all concerned to face such exigencies.
It has therefore, become necessary to reassess the strengths and weaknesses of the existing strategies for
handling such exigencies.

OR

The present law has insufficient penalties to deal with these new situations and is not deterrent enough to
prospective offenders. It is necessary to make the extant provisions dealing with hijacking, more comprehensive
in order to cover all aspects and kinds of hijacking by offenders and conspirators and to make the law more
stringent by award of death penalty for such offences. In view of the increasing cases of hijacking and
impending threats of hijacking, it is proposed to amend the Anti-Hijacking Act, 1982.

GS

SC

The Anti Hijacking Act, 2016 give effect to the Convention for the Suppression of Unlawful Seizure of
Aircraft 1970 and for matters connected therewith. The 1970 Convention known as 'the Hague Convention',
was a measure to strengthen up the Tokyo 'Convention on Offences and Certain Other Acts Committed on
Board Aircraft' 1963, in the sense that it defined what constituted an "unlawful seizure of aircraft" and obliged
the signatories to engraft this offence in their domestic laws as one punishable with various penalties. This
Hague Convention was further built upon by the Montreal 'Convention for the Suppression of Unlawful Acts
against Safety of Civil Aviation (Sabotage)', signed in 1971 and provided for situations such as attack against
a person on-board a civilian aircraft in flight or an attack which would endanger the aircraft.
Further, India signed the Protocol Supplementary to the Convention at Beijing on the 10th day of September,
2010 which deals with unlawful acts against Civil Aviation by new types of threats which require comprehensive
amendments to the Anti Hijacking Act 1982.
Since, India is one of the most vulnerable country to terrorism and has faced nearly 19 hijacking incidents.
It is expedient that a comprehensive law which can deter such acts and provide a stringent punishment to all
involved in the act.
Basic definitions used:
Aircraft means any aircraft, whether or not registered in India, other than a military aircraft or an aircraft used
in customs or police service.

Hostage means a passenger or a crew member of an aircraft or any security personnel on board the aircraft or
a ground support staff involved in the maintenance of the aircraft, who is unlawfully seized or detained without
his consent, or with his consent obtained by fraud or duress, by an individual or by a group of persons, during
the transit of an aircraft or when it is stationed at an airport, with an intention to secure any demand or

Notes

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fulfilment of any condition made by such individual or such group of persons.

Military Aircraft means an aircraft of the naval, military, air force or any other armed forces of any country and
includes every aircraft commanded for the time being by a person in any such force detailed for the purpose.

Acts of unlawful interference means acts or attempted acts to jeopardize the safety of civil aviation and air
transport, including:

(i)

Unlawful seizure of aircraft in flight;

(ii) Unlawful seizure of aircraft on the ground;

(iii) Hostage-taking on board aircraft or on aerodromes;
(iv) Forcible intrusion on board aircraft, at an aerodrome or on the premises on an aeronautical facility;

(v) Introduction on board an aircraft or at an aerodrome, of a weapon, explosive or other hazardous device, article
or substances intended for criminal purposes;

Major Provisions of the Act

OR

(vi) Communication of false information with a view to jeopardize the safety of an aircraft in flight or on the ground,
of passengers, crew, ground personnel or the general public, at an aerodrome or on the premises of a civil aviation
facility.

The Bill seeks to repeal the Anti-Hijacking Act, 1982. Besides broadening the definition of hijacking, it
also provides for an enhanced punishment to the perpetrators.

Hijacking of a commercial aircraft means illicitly and intentionally seizing control of an aircraft in service,
by technological means or force, coercion or any other form of intimidation. By taking both technology
and manpower as tools to fight hijacking, the changes in the bill will cover all probable aspects of a hijack
situation.

It covers several acts within the definition of hijacking. It includes (i) attempt and abetment of hijacking
(ii) organizing or directing others to commit hijacking and (iii) making a credible threat to commit
hijacking.

The law provides for capital punishment for hijackers, conspirators and abettors if the hijacking results in
casualties even if ground airport personnel and handling staff are killed during such acts. So that all those
involved, directly or indirectly, are brought to book. For the first time, the act provides for the confiscation
of moveable and immoveable property of a person convicted under its purview. In the earlier Bill,
hijackers could be tried for the death penalty only in the event of death of hostages, such as flight crew,
passengers and security personnel. Another notable inclusion relates to a designated court to provide a
speedy trial for offences relating to hijacking.

The act goes a step forward by even defining the term 'in service'. An aircraft is considered in service from
the beginning of the pre-flight preparation by ground personnel or by the crew for a specific flight until
24 hours after landing. Further, in case of a forced landing, the flight is deemed to continue in service until
the competent authorities take over responsibility of the aircraft, and for the persons and property on
board.

Another notable feature of the new legislation is universal jurisdiction, which includes inter-alia, if the
hijacker is Indian, or if the hijacked aircraft is registered in India or if any foreign registered aircraft lands

Notes

GS

SC

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in India with the alleged offender still on board or when the aircraft is hijacked anywhere in the world and
an Indian citizen is on board. Thus act widens the area of jurisdiction. Under it, hijacking and the related
offences shall be extraditable. It means that for such offences, one country many transfer the accused to
another country's legal jurisdiction. The Bill will not allow refusing the request for extradition on the
ground that hijacking is a political offence or is connected to a political offence. This will enhance the
international cooperation to fight against terrorism.

Lacunas in the Act

While there is a great improvement to the existing legislation, which was last amended in 1994, the act has
some shortcomings.
The term 'aircraft' is identified as any aircraft, whether or not it is registered in India. But, it excludes an
aircraft that is used in customs or police service, which should have been included.

The Act does not include necessary provisions of providing compensation to victims or their dependents in
case of Indian carriers as well as foreign carriers.

OR

A new provision related to punish hoax calls should be added. A hoax call refers to the act of reporting a
hijacking which one knows to be false so as to create panic. They also cause a nightmare for security agencies
that end up wasting resources and time to verify the authenticity of the call.
The Act provides when any act of violence is committed against any passenger or crew member alongside
the hijacking, it will be punishable under other applicable Indian laws (eg. Indian Penal Code, 1860). This
protection should be extended to cover acts of violence against ground staff or security personnel as well.

SC

Hijacking and the related offences shall be extraditable. Extraditable offences are those offences for which one
country many transfer the accused to another country's legal jurisdiction. No request for extradition shall be
refused on the ground that hijacking is a political offence or is connected to a political offence. But
implementation of it at international space is difficult.

Notes

GS

The new legislation is a welcome move as India tightens its stand on dealing with hijacking incidents, but
security measures should be enhanced to avoid the situation of hijacking.

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THE NATIONAL WATERWAYS ACT, 2016

Waterways were the lifelines of the ancient Magadhan empire, which hugely depended on rivers of gangetic
plain to transport goods and soldiers to remote corners of India. But due to the expansion of road and rail
transport, the importance of this mode has declined considerably. The potential of IWT to encourage and
support economic and social development is huge, more so in a developing nation like India which uses only
5700 km out of 14500 km of navigable inland water way (comprising rivers, lakes, canals, creeks and
backwaters) for mechanized navigation.

National Waterway No 1 (NW-1) - The Ganga (North India)

SC

OR

The Inland Waterways Authority of India (IWAI), created in 1986 is responsible for development and regulation
of inland waterways for shipping and navigation. The Inland Waterways Authority of India Act, 1985
empowers the Government to declare waterways with potential for development of shipping and navigation
as National Waterways and develop such waterways for efficient shipping and navigation. Five national
waterways had been declared so far. These were:

The Ganga-Bhagirathi-Hooghly River System connecting Haldia-Kolkata (Calcutta) -Farakka - Munger - Patna
- Varanasi - Allahabad is navigable by mechanized boats up to Patna and by ordinary boats up to Haridwar.
The NW-1 stretches to more than 1620 Kms of potentially navigable waterways. Night navigational facilities
are in the process of implementation.
National Waterway No 2 (NW-II) - The Brahmaputra (North-East India)

GS

The river Brahmaputra connecting Dhubri-Pandu (Guwahati)-Tezpur-Neamati-Dibrugarh-Sadiya stretching to

about 891 Kms was declared a National Waterway in 1988. Provisions for 2-meter depth channels, night
navigational facilities are under consideration.
An inland Water Transport transit and trade protocol exists between India and Bangladesh. The NW-2 connects
the North East region with Calcutta and Haldia ports through Bangladesh and Sunderbans waterways.

National Waterway No 3 (NW-III) - The West Coast Canal (South West India)

The West Coast Canal located in Gods Own Country - Kerala runs from Kollam to Kottapuram and was
declared a National Waterway in 1993.The NW-3 is one of the most navigable and tourism potential area in
India and has much to offer to the potential tourist.

National Waterway 4 (NW 4)

Notes

The Kakinada-Puducherry stretch of Canals and the Kaluvelly Tank, Bhadrachalam - Rajahmundry stretch of
River Godavari and Wazirabad - Vijayawada stretch of River Krishna has been declared as national waterways
No. 4.

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National Waterway 5 (NW 5)

GS

SC

OR

The Talcher-Dhamra stretch of river Brahmani, Geonkhali - Charbatia stretch of East Coast Canal, CharbatiaDhamra stretch of Matai River and Mangalgadi-Paradip stretch of Mahanadi delta rivers has been declared
as national waterway No. 5.

The National Waterways Act, 2016 envisages waterways as fuel efficient, cost effective and environment
friendly modes of transport, facilitating future economic growth of India.

Key features of the Act

The enactment of this Act (Central legislation) will pave way for the inclusion of 106 additional inlands
waterways. Thus the total number of national waterways numbers will go up to 111 from existing five
national waterways.

Declaration of these National Waterways would enable Inland Waterways Authority of India (IWAI) to
develop the feasible stretches or Shipping and Navigation.

The Act repeals the five Acts that declare the existing national waterways. These five national waterways
are now covered under this.

The Inland water ports will be developed in line of Airports.

A river traffic control system has been introduced in line of air traffic control system.

Notes

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Analysis
A big boost to trade: The National Waterways Act is a critically important development as India's trade
through the waterways constitutes only 3.5 per cent. In comparison, China's waterways linked trade is 47
per cent; 40 per cent in Europe, 44 per cent in Japan and Korea and 35 per cent in Bangladesh.

Cost effective mode of transportation: Often it has been said that it is cheaper to transport goods from
Mumbai to London than to Delhi. In this context Inland waterway with just 30 paise/unit cargo movement
(roads- Rs. 1.5, rails- Rs. 1) provides a cheaper alternative which can lead to reduction in cost of goods
(tackle inflation).This will lead to optimum modal mix.

Tool for industrial development: The competitive edge of key industries (steel, agro, oil & minerals) on
the global market strongly relies on cost-effective inbound and outbound shipments of raw materials by
waterways. A positive chain effect is established that can directly benefits non-waterway regions through
competitive pricing of end products.

Greener and safer way of transport: In comparison to road transport , which causes 5 lakh accidents
/ year and causes huge environment pollution, waterways (with LNG fuel , wind power) will not only act
as a safer medium of transport but also will cater to India's green commitment .

Regional development: The development of waterway infrastructure and ensuing economic activities can
become the growth pole for development of some of the backward areas. This can also give big boost
to tourism.(example: By developing National waterway-1 on River Ganga, India can bring development
to one of its most populated and backward areas.)

Regional cooperation, both in the east and west of India. The Indus river system offers great potential
for inland water transport for the northern and north-western states. Likewise, the Ganga system offers for
the northern and eastern states and the Brahmaputra for the eastern and north-eastern states. Similarly, the
waterways can form partnerships among peninsular states of India.

SC

OR

Concern Areas

Infringement upon rights of states: States have posed concern over usurpation of rights over water by
Centre through this act. However Centre through a consultative process has allayed fears of states by
assuring the states about no impact on the state's right on water.

Impact on flora and fauna: Environmentalists have raised concern about the possible negative impact on
river ecology and marine animals. In this regard the techno-economic feasibility undertaken by the Inland
Waterways Authority of India (IWAI) and various Environmental Impact Assessments were carried out
and the Parliament was appraised before the Bills for declaration were processed.

Funding: Many parliamentarians have raised doubt about the feasibility of this ambitious project as it
would need huge capital. In this regard the government have shown full confidence in its capability in
raising the appropriate capital through PPP mode.

GS

Factors affecting Inland waterways:

Diversion of river water for irrigation canals has reduced the flow of water and declined the navigation capacity
of the rivers.

2.

The presence of waterfalls, cataracts and sharp bends hinders the development of waterways.

3.

Silting of river bed reduces the depth of water and creates problem for navigation.

4.

Lack of funds.

Notes

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5.

Insufficient depth throughout the stretch of navigable waters.

6.

Non availability of low draft high technology vessels.

7.

Non availability of navigational aids resulted in restricted sailing over a long period.

8.

Most of the large rivers of the country enter the sea through shallow sand chocked delta channels. Thus
navigation is hampered unless dredging is done.

Conclusion
Certainly Inland waterways provide a wide range of benefits like reduced fuel consumption, reduced global
warming, cheaper goods and services for customers, more fisheries and wildlife, less accidents on road,
decongested highways, cheaper travel opportunities for riverine communities .Further certain values like drainage
and community benefit (like community pride) will be unfold in future.

Notes

GS

SC

OR

Despite all the above mentioned benefits, it is important to conduct further evaluation work in order to
provide more values and benefits for a large number of people. How the public perceive and value the benefits
of inland waterways will be important and a valuable contribution to peoples' quality of life. At the same time
detailed technical, economic and environmental analysis in accordance with the principles of integrated water
resources management should continue, taking all stake holders on board.

Mains Special

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MMDR :THE MINES AND MINERALS

(DEVELOPMENT AND REGULATION)
AMENDMENT ACT, 2015 AND 2016

The Bill of 2015 amends the Mines and Minerals (Development and Regulation) Act, 1957 and again this
was amended in MMDR Amendment Bill 2016 to allow for transfer of captive mines in the country without
the need for auction and this will unclog a number of stuck deals in the mining sector. The Amendment has
taken into consideration the views and recommendations of the Shah Committee and the recent Supreme
Court judgment in the case of Manohar Lal Sharma versus the Principal Secretary and Ors. (2014), which
cancelled all coal-block allocations since 1993, and has introduced greater transparency in the allotment of the
mining leases by resorting to the auction route.

OR

The Mines and Minerals (Development and Regulation) Act, 1957 regulates the mining sector in India and specifies
the requirement for obtaining and granting leases for mining operations. This was amended in 2015 and 2016.

SC

India has abundant mineral wealth and among the world's largest mineral deposits; 3rd largest global coal and lignite
deposits, 4th largest bauxite deposits1 and substantial deposits of iron ore, copper, mica. Despite this, India is a net
importer of iron ore, copper, coal; 17 billion USD coal import bill. India is ranked 60th out of 122 jurisdictions in
the Investment Attractiveness Index and 63rd in the Policy Perception Index according to the Survey of Mining
Companies Report, 2014 published by Fraser Institute; moved up from 74th in 2013.

Provisions In Amendment Bill, 2015

GS

The Bill replaces the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015
promulgated on January 12, 2015. Provisions of the Act are in line with the recommendations of the Anwarul
Hoda Committee on National Mineral Policy.
Fourth Schedule: The Bill adds a new Fourth Schedule to the Act. It includes bauxite, iron ore, limestone
and manganese ore and are defined as notified minerals. The central government may, by notification,
amend this Schedule.

Removal of discretion: Auction to be sole method of allotment.

Maximum area for mining: Under the old 1957 Act, a person could acquire one mining lease for a
maximum area of 10 sq km. However, for the development of any mineral, the central government could
permit the person to acquire one or more licenses or leases covering additional area. The New Bill of 2015
amends this provision to allow the central government to increase the area limits for mining, instead of
providing additional leases.

Lease period: Under the Act, a mining lease was granted for a maximum of 30 years and a minimum
of 20 years and could be renewed for a period not exceeding 20 years. Under the Bill, the lease period
for coal and lignite remains unchanged. For all minerals other than coal, lignite and atomic minerals,
mining leases shall be granted for a period of 50 years.

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Institutions: The Bill provides for the creation of a District Mineral Foundation (DMF) and a National
Mineral Exploration Trust (NMET). The DMF is to be established by the state government for the benefit
of persons in districts affected by mining related operations. The NMET shall be established by the central
government for regional and detailed mine exploration. Licensees and lease holders shall pay the DMF
an amount not more than one-third of the royalty prescribed by the central government, and the NMET
two percent of royalty.

Simplification of procedures and avoidance of delay and stringent provisions against illegal mining:
State Governments needed to obtain the prior approval of the Central Government before grant of 10
mineral concessions. The Amendment removes the need for such "prior approval" or approval of mining
plan of the state from the Central Government, thereby making the process quicker and simpler.

Benefits: In Amendment Bill, 2015

It seeks to introduce a more predictable and clear regulatory and policy environment for the mining sector,
so as to do away with delays and improve transparency in allocation of mineral resources.

Mining reforms would result in an accelerated growth scenario, which could result in increase of about 1.5
to 2.5 times the output from mining sector at current levels; Increased direct contribution to GDP to the
tune of USD 60-80 billion.

Growth in the mining sector would help bridge the demand supply gap or else India will become a net
importer of iron ore, coal. Robust mining sector would reduce dependence on imports and address cost
competitiveness issues faced by downstream industries.

Create 2 million to 2.5 million direct jobs by 2025, and an additional 11 million to 13 million jobs through
indirect employment opportunities created in other sectors;contributing 3 per cent to total employment,
up from 0.3 per cent currently.

In 2012, the mining and downstream industry generated about USD 18 billion in taxes. It could contribute
approximately USD 40 to 50 billion as royalties, taxes and duty by 2025; contribution of mining to GDP
of Odisha can increase to 22.1% and for other states also.

GS

SC

OR

The MMDR Act, passed by Parliament in March 2015, only allows transfer of mining leases in cases where
the mine has been acquired through auction. The MMDR Act, 1957, as amended through the MMDR
Amendment Act, 2015, restricted the scope of transferability of concessions granted through auction. It was
restricting the mergers and acquisitions of companies and was impeding the ease of doing business for
companies dependent on supply of mineral ore from captive leases, This lead to new Amendment in 2016
in the form of The Mines and Minerals (Development and Regulation) Amendment Bill, 2016.

Provisions In Amendment Bill, 2016

Transfer of mining leases: It include the provisions of allowing transfer of captive mines granted through
procedures other than auction. The holder of these mining leases may transfer the lease to any eligible
person, with the approval of the state government, and as specified by the central government. No transfer
shall take place if the state government communicates, in writing, that the transferee is not eligible.

Captive purpose: Captive Purposes has been defined as the use of the entire quantity of mineral extracted
in the lessee's own manufacturing unit. Such lease transfers will be subject to terms and conditions, and
transfer charges as prescribed by the central government. This will prohibit the sale of excess Mineral.
This provision will allow for merger and acquisition of companies with captive mining leases.

Notes

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Leased area: A area within which mining operations can be undertaken. This will also include the nonmineralised area required for the activities defined under mine in the Mines Act, 1952.

Benefits - In Amendment Bill, 2015:

Lessees: The amendment will benefit lessees desirous of transferring the captive leases not granted
through auction.

Banks and Financial Institution: It will also benefit banks and financial institutions. It does not entail any
recurring or non-recurring expenditure on the government. Transfer of captive mining leases, granted
otherwise through auction, would facilitate banks and financial institutions to liquidate stressed assets
where a company or its captive mining lease is mortgaged.

Consolidation: The amendments to the Mines and Minerals (Development and Regulation) Act will
streamline the consolidation process in the cement and steel industry, as companies will be able to transfer
captive mines to the acquirer which was acquired by them in the pre-auction era.

Merger and Acquisition: This could also trigger acquisitions in the steel sector primarily by medium and
small players since the larger players are well placed with captive mines, in the cement sector.

Capital Inflows: The legislation allows mergers and acquisitions worth billions of dollars in the domestic
market as the provision of non-transfer of concessions granted through auction.

Labour Security: transfer of captive mine will be only for captive purpose and not for any industrial
purpose, this will benefit workers and will save factories from closure where the original allottee of a mine
was not in a position to run it. Labourers will be rendered unemployed in case any industry is sick and
not transferred and Economcy will be hit.

Improve ease of doing business in the country.

SC

OR

The Ultratech-JayPee and Birla-Reliance deals, which were worth Rs 5,400 crore and Rs 4,800 crore respectively,
both of which have been stuck because of the MMDR Act, will likely get a fillip following the government's decision
to move an amendment.

GS

Earlier Provisions in 2015

Under the Mines and Mineral Development and Regulation Act- 2015, mines cannot be transferred unless
these were allocated by way of auction. The MMDR Act, passed by Parliament in March-2015, only allows
transfer of mining leases in cases where the mine has been acquired through auction and not for other than
auction.

Issues in New Bill of 2016

The amendment, however, has come with a rider of transfer fees, which may lead to higher capital cost for
the acquirer. Absence of clear guidelines related to the transfer fees could play spoil sport to the consolidation
process in the industry.
Issues and Challenges Facing the Mining Sector In India
Plagued by poor regulations, weak institutions, inadequate monitoring and feeble enforcement.

Mine allocation suffers from non-transparency and arbitrariness( Before this amendments).

The current mechanism of royalty and taxes fails to equitably distribute the windfall profits made by companies.

Notes

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Suffers from low investment in exploration, development of technology and implementation of best practices.

The legacy of captive mines.

Most mining districts in the country are also the poorest.

Has one of the poorest environment performance.

The legacy of abandoned mines.

Auctioning cannot be a one-size-fits-all solution: Auctioning is the best way to allocate mining concessions
where the deposits can be accurately established and a proper valuation can be done. This will capture the
windfall profits as well as bring transparency in the allocation of concessions. However, in cases where
mineralisation is not properly established, auctioning can lead to problems including undervaluation of minerals,
in which case it would lower revenue for the government, or overvaluation, resulting in the inability of the
concession holder to meet commitments.

Conclusion

SC

OR

This amendment is to promote optimal utilization of India's mineral resources for its industrial growth and
create economic surplus using scientific exploration and sustainable mining practices. It lays down a
comprehensive legislative framework to ensure a fair and transparent manner of allocation while safeguarding
the interests of the local community and people affected by mining activities. It would open up the sector
to enhanced activity from existing and new players, and thereby increase the productivity of the mining sector.
The mineral rich states such as Odisha, Jharkhand and Chhattisgarh would benefit from the increased revenue
and livelihood opportunities. It should be remarked though that the Centre's role in the system ends with
formulation of rules and auctions need to be conducted by the states in a planned and time-bound manner,
which would ensure greater flow of funds into the state coffers.
However, in order for the mining sector to realize its full potential, more steps need to be undertaken to create
a conducive environment for the industry to flourish such as:
Meeting the need-based skill requirements of the mining industry on a short-term and long-term basis.

Improving and expanding physical and logistics infrastructure.

Ensuring active involvement of all concerned stakeholders.

Notes

GS

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THE REAL ESTATE (REGULATION AND

DEVELOPMENT) ACT, 2016
Real estate sector in India has seen tremendous growth in recent years and is expected to continue it in near
future. Increasing urbanization, more focus in bulk housing projects, relaxations in FDI in construction sector
are some of the factors which are expected to drive the growth of real estate in India. At the same time there
are concerns of exploitation of consumers, rent seeking behavior by agents and developers. The Real Estate
Act is an attempt to ensure harmonious growth of the sector.

Issues And Challenges In Real Estate Sector

Issues faced by customers

Delay in Projects: The major problem consumer facing is delay of projects which may happen due to
various reasons like court intervention in land issues, finance, approval, etc. The consumer had to suffer
because customer is paying rent where resides and paying EMI for home loan at same time due to delay
of projects.

Further there is little or no provision for necessary compensation from side of government.

Fraudulent advertisement to sell product is quite popular and frequent in real estate. The main reason for
flourishing fraudulent methods is absence of any regulator and standard guidelines.

Further builders pays only 2 to 3% interest in case of default from their side but when customers default
(like refuses to buy) then they have to pay around 16 to 18% which is unfair.

GS

Issues faced by Real Estate Industry

SC

OR

The key challenges that the Indian real estate industry is facing today are:
Approvals and Procedural difficulties: There are almost 50 approvals or more need to be taken for
starting a real estate project and further these approvals are required form different government departments
or authorities. This is one of the major causes of delays and high amount of corruption in real estate
sector. Consequently corruption and delay cause inconvenience to customers only.

Lack of clear land titles: The land titles are not clear because of poor record keeping and division of land
in many parts till independence. The slow pace of modernization of land records is further aggravating the
problem.

Speculation in Land and Real Estate Prices: The prices of land and real estate in India has increased
exponentially in last decade and causes overpricing of commercial or residential property. In recent times,
the real estate is the most favorable destination for investment in India and far ahead than equity or gold.
Further real estate agents or brokers buy or sell property frequently with their own investments and cause
of surging prices in property.

Sources of Finance: Finance is the key for development of any industry. Due to poor image of Real
Estate sector, banks are becoming reluctant to provide loans and making regulation tougher to avoid the
bad loans. Alternate sources of finance are very costly and ultimately impact total cost of the project.

Notes

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High Input Cost: The real estate is a capital and labour intensive industry; thus rise in cost of labour and
construction material due to inflation poses many problems to real estate industry. Further real estate
builders many times raise a question about unfair practices in cement industry for rise of price more than
50% in quick time.

Further government intervention of building minimum 20% affordable housing putting extra burden
on developers and ultimately on the rest 80%.

Real estate is the most famous sector for soaking the black money without any ambit.

High taxation like stamp duty, VAT etc. and land acquisition are other major challenges faced by real
estate sector.

All the above issues can be verified by the facts that more than 30% of houses and commercial spaces are
lying vacant in major cities like Mumbai or Delhi despite being so much demand in real estate sector.

OR

Thus, to handle the above issues government of India has launched Real Estate (Regulation and Development)
Act. It seeks to regulate contracts between buyers and sellers in the real estate sector to ensure consumer
protection, and standardisation of business practices. It establishes regulatory authorities at the state level to
register residential real estate projects.

Important Provisions of the Act

The Act creates independent Real Estate Regulator with whom all real estate projects have to be registered,
to have oversight over real estate projects and Real Estate Appellate Tribunals to adjudicate disputes within
time limits.

SC

What has been covered within the Act?

Projects on at least 500 sq metres of area or with eight flats will have to be registered.

Commercial and residential, all types of projects.

Ongoing projects.

Brokers or agents.

GS

The Act aims to promote the health of Real Estate Sector and protect consumer interests. Important provisions
of the Act are:
The regulatory authorities will promote a single-window system of clearances for real estate projects.

Residential and commercial real estate projects need to be registered with Regulator.

Regulatory authorities can grade projects along with grading of promoters, besides ensuring digitization of
land records.

Details of the project should be uploaded on the Regulator website. These include the site and layout plan,
schedule for completion, land title, etc of the real estate project.

70% of the amount collected from buyers for a project must be maintained in a separate bank account
and must only be used for construction of that project. The state government can alter this amount to
less than 70%.

Any change in the project plan or layout requires consent of 2/3 of the buyers.

Clear definition of carpet area to avoid any kind of confusion and protect consumer interest.

Notes

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If there is any delay in the completion of the project than developers will have to pay interest to buyers
and buyers will pay if there is any delay from their side on payment.

Formation of residential association within the 3 months of the allotment of majority of units.

Aggrieved buyers can also approach consumer courts at district level instead of Regulator.

The buyer can contact the developer in writing within one year of taking possession to demand after sales
service if any deficiency in the project is noticed.

The maximum jail term for a developer who violates the order of the appellate tribunal of the RERA is
three years with or without a fine.

Tribunals will have to adjudicate cases in 60 days as against 90 days proposed earlier. Regulatory authorities
will have to dispose of complaints within 60 days.

Positive implications of the Act

Real estate sector in India is suffering from issues like abuse of their position by builders, high costs, low
quality, high use of black money, bureaucratic tangles and absence of sufficient housing stock for low
income population.

The Act will improve Ease of Doing Business. The Act will help by providing single window clearance.
This will speed up the projects by eliminating unnecessary delays. Resolution of disputes by the Regulator
in a time bound manner.

Consumer protection by focusing on transparency through declaration of project related information.

Accountability will be ensured on the part of builders. As they will have to use 70% funds for construction
only, have to pay for delay and will be responsible for any kind of latent defects.

More investments will come to the sector as establishment of regulator and other provisions will help in
bringing transparency and speedy resolution of disputes. This will attract FDI and other funds. This will
reduce the cost of funding and will bring costs down.

The Act will also help under construction projects as buyers have stayed away from them because of
unscrupulous behavior from developers. This will help them with supply of funds.

It will also ensure that fly-by-night operators and land grabbers/speculators are eliminated. As a result,
there will be fewer competitive bidders vying for the limited supply of land. That will check land prices.

Timely completion of projects also means there would be a steady increase in supply of homes.

This will also help overall economy by boosting demands for ancillary sectors like cement, furniture, etc.

GS

SC

OR

Concerns
The timely completion of projects depends upon timely approvals from Municipal Bodies for a range of
issues like electricity, water etc. The Act does not talk about that.

Housing for weaker section is one of the growing concerns. It must have been included in the Act to
ensure certain percentage of housing stock is developed for weaker section by project developers. Each
real estate projects have low income workers whose housing needs must be satisfied.

The issue of black money has not been tackled.

Notes

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The mandatory keeping of money in separate bank account may affect projects where cost of land
acquisition is higher. It will also affect optimum utilization of resources by the developers. As the 70%
funds which are locked in also includes profits of the developers.

There are concerns that regulator may not end up as addition of another step in the bureaucratic ladder.

Notes

GS

SC

OR

Overall the Act is welcome steps for the real estate sector and will help in the quick and quality urbanization
of India.

Mains Special

www.iasscore.in

THE AADHAAR (TARGETED DELIVERY OF

FINANCIAL AND OTHER SUBSIDIES, BENEFITS
AND SERVICES) ACT, 2016
The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 intends
to provide for targeted delivery of subsidies and services to individuals residing in India by assigning them
unique identity numbers, called Aadhaar numbers.

Key features in brief

Eligibility: Every resident shall be entitled to obtain an Aadhaar number. A resident is a person who has
resided in India for 182 days, in the one year preceding the date of application for enrolment for Aadhaar.

OR

Use of Aadhaar number: To verify the identity of a person receiving a subsidy or a service, the government
may require them to have an Aadhaar number.
If a person does not have an Aadhaar number, government will require them to apply for it, and in the
meanwhile, provide an alternative means of identification.

Any public or private entity can accept the Aadhaar number as a proof of identity of the Aadhaar number
holder, for any purpose.

Aadhaar number cannot be a proof of citizenship or domicile.

SC

Functions and composition of authority: The key functions of the UID authority include,
Specifying demographic and biometric information to be collected during enrolment,

Assigning Aadhaar numbers to individuals,

Authenticating Aadhaar numbers, and

Specifying the usage of Aadhaar numbers for delivery of subsidies and services.

GS

Authentication: The UID authority will authenticate the Aadhar number of an individual, if an entity makes
such a request. A requesting entity (an agency or person that wants to authenticate information of a person)
has to obtain the consent of an individual before collecting his information.
Cases when information may be revealed: In two cases, information may be revealed:
In the interest of national security, a Joint Secretary in the central government may issue a direction for
revealing, (i) Aadhaar number, (ii) biometric information (iris scan, finger print and other biological
attributes specified by regulations), (iii) demographic information, and (iv) photograph. Such a decision
will be reviewed by an Oversight Committee (comprising Cabinet Secretary, Secretaries of Legal Affairs
and Electronics and Information Technology) and will be valid for six months.

On the order of a court, (i) an individual's Aadhaar number, (ii) photograph, and (iii) demographic
information, may be revealed.

Notes

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Cognizance of offence: No court shall take cognizance of any offence except on a complaint made by the
UID authority or a person authorised by it.

Key issue regarding the decision to treat the Aadhaar Bill

As A Money Bill Since its introduction as a money bill in the Lok Sabha, the Aadhaar (Targeted delivery of
Financial and other subsidies, benefits and services) Bill, 2016 has been embroiled in controversy. The Lok
Sabha rejected the five recommendations of the Rajya Sabha and adopted the bill in March.
Article 110 (1) of the Constitution defines a money bill as one containing provisions only regarding the
matters enumerated or any matters incidental to them. These are:
Imposition, regulation and abolition of any tax,

b)

Borrowing or other financial obligations of the Government of India,

c)

Custody, withdrawal from or payment into the Consolidated Fund of India (CFI) or Contingent Fund of
India,

d)

Appropriation of money out of CFI,

e)

Expenditure charged on the CFI or

f)

Receipt or custody or audit of money into CFI or public account of India.

OR

a)

Arguments Against Treating Aadhaar Bill As Money Bill

SC

The mere fact of establishing the Aadhaar number as the identification mechanism for benefits and subsidies
funded by the CFI does not give it the character of a money bill. The bill merely speaks of facilitating access to
unspecified subsidies and benefits rather than their creation and provision being the primary object of the legislation.
Erskine May's seminal textbook, 'Parliamentary Practice" is instructive in this respect and makes it clear that
a legislation which simply makes a charge on the Consolidated Fund does not becomes a money bill if
otherwise its character is not that of one.

GS

Article 110 (3) is very clear in pronouncing the authority of the Speaker as final and binding. Additionally,
Article 122 prohibits the courts from questioning the validity of any proceedings in Parliament on the ground
of any alleged irregularity of procedure.
The powers of privilege that Parliamentarians enjoy are integral to the principle of separation of powers.
However, the courts may be able to make a fine distinction between inquiring into procedural irregularity
which is prohibited by the Constitution; and questioning an incorrect application of substantive principles,
which , is the case with the Speaker decision.

Critical clauses and issues in the Act

Under Section 7, the Bill gives the government sweeping powers to make Aadhaar mandatory for a wide range
of facilities and services.
Section 57 enables the government to impose Aadhaar identification in virtually any other context, subject
to the same safeguards as those applying to Section 7.

Mass surveillance

Notes

Most of the "Aadhaar-enabled" databases will be accessible to the government even without invoking the
special powers available under the Bill, such as the blanket "national security" clause.

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And mass surveillance per se is an infringement of democracy and civil liberties, even if the government does
not act on it. As Glenn Greenwald aptly puts it in his book No Place to Hide, "history shows that the mere
existence of a mass surveillance apparatus, regardless of how it is used, is in itself sufficient to stifle dissent."

Uncertain benefits

In reality, Aadhaar can only help to plug specific types of leakages, such as those related to duplication in
beneficiary lists. It will be virtually useless to plug leakages in, say, the Public Distribution System (PDS),
which have little to do with identity fraud.
Wherever Aadhaar authentication has been imposed on the PDS, there have been complaints of delays,
authentication failures, connectivity problems, and more. The poorer States, where the PDS is most needed,
are least prepared for this sort of technology. There are better ways of reforming the PDS. Similar remarks
apply to the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS).

Inadequate safeguards

OR

No doubt Aadhaar, if justified, could have some useful applications. Given the risks, however, the core
principle should be "minimum use, maximum safeguards". The government has shown its preference for the
opposite - maximum use, minimum safeguards.

UN High Commissioner for Human Rights NaviPillay published her detailed report on 'The Right to Privacy
in the Digital Age' in July 2014. Ms. Pillay's report stated clearly that internal procedural safeguards without
independent external monitoring are inadequate for the protection of rights.

SC

This means that the system by which a Joint Secretary issues orders that are reviewed by three Secretaries
is not acceptable. Ms. Pillay's report said that effective protection of the law can only be achieved if all the
branches of government as well as an independent civilian oversight agency are built into the procedural
safeguards.
The new Aadhaarlegislation removed the independent oversight committee that was meant to monitor the
operation of Aadhaar. Both its systems for access to Aadhaar data involve only one branch of government
each.

GS

The Aadhaar Bill includes some helpful safeguards, but it does nothing to restrain the use of Aadhaar or
prevent its misuse as a tool of mass surveillance and even the safeguards protect the UIDAI more than the
public.
UID authority's exclusive power to make complaints

A provision says, "Courts cannot take cognizance of any offence punishable under the Act, unless a complaint
is made by the UID authority, or a person authorised by it." This may present a conflict of interest as under
the Bill the UID authority is responsible for the security and confidentiality of identity information and
authentication records. There may be situations in which members or employees of the UID authority are
responsible for a security breach.
The Aadhaar Bill excludes courts from taking cognisance of offences under the legislation, requiring that the
authority that runs Aadhaar consent to prosecution for any action to be taken under the legislation. This part
of the Bill completely undermines all the safeguards that do exist within it, since citizens cannot access these
safeguards without co-operation from the authority which is arguably in a position of conflict of interest.

Disclosure of information to intelligence or law enforcement agencies

Notes

The provisions regulating disclosure of private information under the Bill differ from guidelines specified under
another law - the Indian Telegraph Act, 1885. The Bill differs from the guidelines for phone tapping in two

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ways. First, the Bill permits sharing in the interest of 'national security' rather than for public emergency or
public safety. Second, the order can be issued by an officer of the rank of Joint Secretary, instead of a Home
Secretary.

Conclusion

Notes

GS

SC

OR

The Aadhar Act will help in proper implementation of government schemes. But the issue of privacy cant
be ignored. Proper steps need to be taken to maintain privacy of the data.

Mains Special

www.iasscore.in

THE JUVENILE JUSTICE (CARE AND

PROTECTION OF CHILDREN) ACT, 2015
Juvenile can be defined as a child who has not attained a certain age at which he, like an adult person under
the law of the land, can be held liable for his criminal acts.

History of Juvenile Justice Acts in India

Juvenile is used when reference is made to a young criminal offenders and minor relates to legal capacity or
majority

Juvenile Justice Act 1986:

a)

No imprisonment of juveniles in police lock-up or jail.

b)

Two main authorities - a juvenile welfare board and a juvenile court - to deal with neglected and delinquent
juveniles.

c)

Establishment of various kinds of institutions for the care of juveniles.

d)

Guaranteed a wide range of dispositional alternatives with preference for family or community-based
placement.

Drawbacks in JJA 1986:

SC

OR

1.

Loopholes in terms of age determination, separate trials, court proceedings, notification of charges to
parents or guardians, filing of reports by probation officers, reasons for and length of confinement,
rehabilitation and after care of juveniles.

b)

The JJA promoted a sex discriminatory definition of a juvenile.

c)

Devoid of the basic infrastructure consisting of juvenile welfare boards, juvenile courts, observation
homes, juvenile homes, special homes and after care homes.

2.

Juvenile Justice (Care & Protection of Children) Act 2000:

a)

Endorsed the "justice" as well as the "rights" approach towards children.

b)

Divided juveniles as "juveniles in conflict with law" and "children in need of care and protection". This
segregation aims to curb the bad influence on the child who is in need of care and protection from the
one who is in conflict with law.

c)

Proposed Standardization in the definition of a 'juvenile' or a 'child' across the country except for Jammu
and Kashmir.

d)

Juveniles in conflict with law are to be handled by the juvenile justice board.

e)

Children in need of care and protection to be dealt by child welfare committee.

Notes

GS

a)

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Drawbacks in JJA 2000:

Does not provide for care, protection, development and rehabilitation of neglected, delinquent children
and includes within its ambit child labourers.

b)

Delays in various processes under the Act, such as decisions by Child Welfare Committees (CWCs) and
Juvenile Justice Boards (JJBs), leading to high pendency of cases.

c)

Increase in reported incidents of abuse of children in institutions.

d)

Lack of clarity regarding roles, responsibilities, functions and accountability of Child Welfare Committees
and Juvenile Justice Boards.

3.

Juvenile Justice (Care and Protection of Children) (Amendment) Act 2006:

a)

According to this Juvenility would be reckoned from the date of commission of offence who have not
completed eighteenth year of age

b)

A juvenile in conflict with law is to be kept in a police lock-up or lodged in a jail.

c)

Chief Judicial Magistrate or the Chief Metropolitan Magistrate is to review the pendency of cases of the
Board at every six months.

d)

Child protection units should be set up in states and districts to see to the implementation of the Act.

OR

a)

Drawbacks in JJA 2006:

Delay in inquiry of cases leading to children languishing in Homes for years altogether for committing
petty offences.

b)

Inadequate facilities, quality of care and rehabilitation measures in Homes, especially those that are not
registered under the Act, resulting in problems such as children repeating offences, abuse of children and
runaway children.

c)

Disruption of adoption and delays in adoption due to faulty and incomplete processing and lack of
timelines.

d)

Limited participation of the child in the trial process, delays in rehabilitation plan and social investigation
report for every child.

e)

Lack of child-friendly procedures by Juvenile Justice Boards and conduct of Board sittings in Courts in
many districts.

f)

Increase in heinous offences committed by children and lack of any specific provisions to deal with such
children.

GS

SC

a)

Why changes required?

The NCRB statistics relating to violent crimes by juveniles against women states that the number of rapes
committed by juveniles has more than doubled over the past decade from 399 rapes in 2001 to 858 rapes in
2010. "Crime in India 2012" records that the total number of rapes committed by juveniles more than doubled
from 485 in 2002 to 1149 in 2011.

Notes

The brutal Delhi gangrape case has bought forth a new controversy related to juvenile justice in India. One
of the accused is a minor of 17 years.

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Section 15(1)(g) of the JJ Act mandates that a juvenile convicted of any offence can be sentenced to a special
home for a period of three years, maximum and thereafter be released on probation.

Salient provisions of the Juvenile Justice (Care and Protection of Children)

Act, 2015
The JJ Act, 2015 provides for strengthened provisions for both children in need of care and protection
and children in conflict with law.

Some of the key provisions include: change in nomenclature from 'juvenile' to 'child' or 'child in conflict
with law', across the Act to remove the negative connotation associated with the word "juvenile"; inclusion
of several new definitions such as orphaned, abandoned and surrendered children; and petty, serious and
heinous offences committed by children; clarity in powers, function and responsibilities of Juvenile
Justice Board (JJB) and Child Welfare Committee (CWC); clear timelines for inquiry by Juvenile Justice
Board (JJB); special provisions for heinous offences committed by children above the age of sixteen year;
separate new chapter on Adoption to streamline adoption of orphan, abandoned and surrendered children;
inclusion of new offences committed against children; and mandatory registration of Child Care Institutions.

Under Section 15, special provisions have been made to tackle child offenders committing heinous offences
in the age group of 16-18 years. The Juvenile Justice Board is given the option to transfer cases of heinous
offences by such children to a Children's Court (Court of Session) after conducting preliminary assessment.
Since this assessment will take place by the Board which will have psychologists and social experts, it will
ensure that the rights of the juvenile are duly protected if he has committed the crime as a child. The
trial of the case will accordingly take place as a juvenile or as an adult on the basis of this assessment.
Preliminary assessment will be for a period of three months. The child will not suffer from any
disqualification that arises from any conviction under the Act.

The records of any conviction will be destroyed after the expiry period of appeal, except in the case of
heinous crimes.

The provisions provide for placing children in a 'place of safety' both during and after the trial till they attain
the age of 21 years after which an evaluation of the child shall be conducted by the Children's Court.

After the evaluation, the child is either released on probation and if the child is not reformed then the
child will be sent to a jail for remaining term. The law will act as a deterrent for child offenders committing
heinous offences such as rape and murder and will protect the rights of victim.

To streamline adoption procedures for orphan, abandoned and surrendered children, the existing Central
Adoption Resource Authority (CARA) is given the status of a statutory body to enable it to perform its
function more effectively.

Several rehabilitation and social reintegration measures have been provided for children in conflict with law
and those in need of care and protection. Under the institutional care, children are provided with various
services including education, health, nutrition, de-addiction, treatment of diseases, vocational training, skill
development, life skill education, counselling, etc to help them assume a constructive role in the society.
The variety of non-institutional options include: sponsorship and foster care including group foster care
for placing children in a family environment which is other than child's biological family, which is to be
selected, qualified, approved and supervised for providing care to children.

Several new offences committed against children, which are so far not adequately covered under any other
law, are included in the Act. These include: sale and procurement of children for any purpose including
illegal adoption, corporal punishment in child care institutions, use of child by militant groups, offences
against disabled children and, kidnapping and abduction of children.

Notes

GS

SC

OR

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All child care institutions, whether run by State Government or by voluntary or non-governmental
organisations, which are meant, either wholly or partially for housing children, regardless of whether they
receive grants from the Government, are to be mandatorily registered under the Act within 6 months from
the date of commencement of the Act. Stringent penalty is provided in the law in case of non-compliance.

Issues related to the Act

The provision of trying a juvenile committing a serious or heinous offence as an adult based on date of
apprehension could violate the Article 14 (right to equality) and Article 21 (requiring that laws and
procedures are fair and reasonable).

The provision also counters the spirit of Article 20(1) by according a higher penalty for the same offence,
if the person is apprehended after 21 years of age.

The UN Convention on the Rights of the Child requires all signatory countries to treat every child under
the age of 18 years as equal.

The provision of trying a juvenile as an adult contravenes the Convention.

Some penalties provided in the Bill are not in proportion to the gravity of the offence. For example, the
penalty for selling a child is lower than that for offering intoxicating or psychotropic substances to a child.

Notes

GS

SC

OR