CAO Daily Editorial analysis for UPSC IAS 22nd-December, 2017

Current Affairs Only Daily Editorial Analysis for Competitive Exams


22nd Dec, 2017

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Should adultery be a crime? {Social issue}

{The Hindu}


Context

This article discusses Section 497 of Indian constitution and the amendments required.

Adultery

Adultery means voluntary sexual intercourse of a married person other than with spouse. The legal definition of adultery however varies from country to country and statute to statute.

While at many places adultery is when a woman has voluntary sexual intercourse with a person other than her husband, at other places adultery is when a woman has voluntary sexual intercourse with a third person without her husband’s consent.

What is criminal law?

Criminal law everywhere in the world serves as a guardian of the moral principles of society, protecting a society’s historical roots while leading it towards a progressive social order.

Section 497

  • Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. That is, it draws a distinction between consent given by a married woman without her husband’s consent and a consent given by an unmarried woman.
  • It does not penalize the sexual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it. In case the offence of adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer.
  • However, since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress. What is interesting here is that the section itself expressly states that the unfaithful wife cannot be punished even as an abettor to the crime. The offence of adultery therefore is an offence committed against the husband of the wife and not against the wife.
  • Adultery cannot be committed without a woman’s consent. Yet, the section burdens man alone for the offence. Though the reasons for this may be justifiable, the woman here is always treated as a victim of the offence. Hence, this section does not contemplate a situation where the same married woman has sexual intercourse with more than one person other than her husband without her husband’s consent.
  • It is highly implausible that even in such a situation the woman would always be the victim and not the person who provokes the offender for the crime. No doubt that the law, as it stands, is inadequate.

Challenge

The Constitutionality of Section 497 was challenged before the Supreme Court under Article 14 on the grounds that it makes an arbitrary discrimination based on sex in the cases of Yusuf Aziz , Sowmithri Vishnu and V. Revathi.

In the case of Yusuf Aziz the Court ruled that the immunity granted to women from being prosecuted under section 497 was not discriminatory but valid under Article 15 (3) of the Constitution.

In the cases of Sowmithri and V.Revathi it was held that it is the policy of the law to not to punish women for adultery and policies could not be questioned. Secondly, that it was not contemplated for a husband and a wife to strike each other with weapon of criminal law. And that adultery therefore was an offence against the matrimonial home and not either against the wife or the husband.

Why Women Are Not Punished for Adultery?

The offence of Adultery did not punish women but still existed in the code because at the time the enforced law was enacted polygamy was deep rooted in the society and women shared the attention of their husbands with several other wives and extramarital relations.

Women were treated as victims of the offence of adultery as they were often starved of love and affection from their husbands and could easily give in to any person who offered it or even offered to offer it. The provision was therefore made to restrict men from having sexual relations with the wives of other men and at the same time to restrict their extra marital relations to unmarried women alone.

Need for amendment

There is no denying that there exist ambiguities within Section 497 of the IPC.

First, it only regulates the seemingly sordid conduct of the man who commits such a crime, all the while exonerating the voluntary conduct of the wife involved.

Second, the benefit of such a law has not been extended to the wife whose husband engages in such an offence with another woman. However, such a plight can be resolved eventually by way of an amendment.


Scam, or folklore? on 2G case verdict {Judicial System}

{The Hindu}


Context

The Supreme Court declared in 2012 that the allocation of 2G spectrum by the Congress-led UPA government was illegal and an arbitrary exercise of power.

It went on to cancel all 122 telecom licences allotted to companies in early 2008 during the tenure of A. Raja as Communications Minister.

The 2G spectrum scamImage result for 2g scam

It was an Indian telecommunication scam and political scandal in which politicians and government officials under the Congress government undercharged mobile telephone companies for frequency allocation licenses, which they then used to create 2G spectrum subscriptions for cell phones.

The difference between the money collected and that mandated to be collected was estimated by the Comptroler and Auditer General of India at ₹1.76 trillion (US$27 billion), based on 2010 3G and BWA spectrum-auction prices. In a chargesheet filed on 2 April 2011 by the CBI(the investigating agency), the loss was pegged at₹309845.5 million (US$4.7 billion).

Image result for 2g scam


 Where are the default disclosure norms, Sebi?

{Indian Economy}

(LiveMint)


Context

One of the most important things the Securities and Exchange Board of India (Sebi) can do to help tackle the bad-loan mess is to notify norms for disclosure of defaults by listed companies.

How?

It will nudge borrowers to behave better and will have a significant effect in preventing another Rs10-trillion bad-loan pile-up after another decade.

Issue

There are different kinds of loans, sometimes they miss payment dates because of cash flow issues and Sebi rules don’t define a default and so on. Banks, too, weren’t far behind in raising objections.

But a higher provisioning need or lack of capital should not come in the way of more transparency.

Why should a delay in interest payments on bank loans be treated differently?

  • The information asymmetry gives an incentive for troubled companies to borrow from banks rather than the market (the opposite of what Reserve Bank of India is trying to achieve in pushing big firms to increasingly borrow from the bond markets) because they don’t have to share this material information with investors.
  • It is not uncommon for borrowers to delay payments till the 90th day, just before a loan is classified as non-performing.
  • It is also not uncommon for banks to evergreen loans by providing top-ups and for borrowers to shuffle funds from parent to subsidiaries, all in an effort to keep a loan standard. All this happens behind the scenes and unknown to investors.
  • For banks themselves, an early warning signal exists because they have the special mention accounts (SMA) classification which categorizes loans that are overdue for up to 30 days, 60 days and so on. Equity investors, too, should get to know when a big borrower misses payments.
  • The argument that it is not desirable that big companies report on even small defaults doesn’t hold water. The bigger the company, the more resources it has to ensure that loan repayments aren’t missed.
  • Even if a company misses an instalment owing to a so-called technical reason, and makes the payment the next day, it can surely bring that to the notice of exchanges.
  • Investors would reward or punish companies suitably judging the materiality of information themselves. Past track record not being an indicator of future performance applies equally to stock prices or company’s cash flows/loan repayments.

Disclosures of default

  • It will also allow the market to correctly discount that information in the share price of a company. The true price (after absorbing the information on defaults) becomes important for banks when they convert debt into equity.
  • In some instances of strategic debt restructuring, the proposed conversion price (decided according to Reserve Bank norms of 10-day average price prior to the day of invoking restructuring) is way higher than current market prices, which incorporate more information. Banks are thus left holding mark-to-market losses.
  • Disclosures in general are better instruments to change behaviour rather imposing penalties or fines because the latter take a lot of time. It is two months now since these norms have been deferred. The Sebi board should set aside objections and announce these norms when it meets on 28 December.

 

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