Archives
(PRELIMS & MAINS Focus)
Mediation Bill, 2021
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Syllabus
Prelims – Polity & Governance – Current Affairs
Mains – GS 2 (Polity & Governance)
In News: Parliamentary Standing Committee on Law and Justice, has recommended substantial changes to the Mediation Bill, meant for institutionalisation of mediation and establishment of the Mediation Council of India.
Key Features of Mediation Bill, 2021
Pre-litigation mediation:
Parties must attempt to settle civil or commercial disputes by mediation before approaching any court or certain tribunals.
Even if they fail to reach a settlement through pre-litigation mediation, the court or tribunal may at any stage refer the parties to mediation if they request for the same.
Disputes not fit for mediation:
The Bill contains a list of disputes which are not fit for mediation. These include disputes:
relating to claims against minors or persons of unsound mind,
involving criminal prosecution, and
affecting the rights of third parties.
The central government may amend this list.
Applicability:
The Bill will apply to mediations conducted in India:
involving only domestic parties,
involving at least one foreign party and relating to a commercial dispute (i.e., international mediation), and
if the mediation agreement states that mediation will be as per this Bill.
If the central or state government is a party, the Bill will apply to:
commercial disputes, and other disputes as notified.
Mediation process:
Mediation proceedings will be confidential, and must be completed within 180 days (may be extended by 180 days by the parties).
A party may withdraw from mediation after two sessions.
Court annexed mediation must be conducted as per the rules framed by the Supreme Court or High Courts.
Mediators:
Mediators may be appointed by:
the parties by agreement, or
a mediation service provider (an institution administering mediation).
Mediation Council of India:
The central government will establish the Mediation Council of India.
The Council will consist of a chairperson, two full-time members, three ex-officio members , and a part-time member from an industry body.
Functions of the Council include:
registration of mediators, and
recognising mediation service providers and mediation institutes
Mediated settlement agreement:
Agreements resulting from mediation (other than community mediation) will be final, binding, and enforceable in the same manner as court judgments.
They may be challenged on grounds of: (i) fraud, (ii) corruption, (iii) impersonation, or (iv) relating to disputes not fit for mediation.
Community mediation:
Community mediation may be attempted to resolve disputes likely to affect the peace and harmony amongst residents of a locality.
It will be conducted by a panel of three mediators (may include persons of standing in the community, and representatives of resident welfare associations).
Key Issues
The Bill makes participation in pre-litigation mediation mandatory. Mediation is a voluntary dispute resolution process. On one hand, this could lead to more out of court settlements and reduce the pendency in courts. On the other hand, mandating mediation goes against its voluntary nature.
The moment any law is made on the subject it becomes the guiding force.
The Bill proposes a clause giving the powers to court to make rules for ‘court annexed mediation’, which is unconstitutional.
It also raises the question on the non-applicability of the provisions of the Bill to disputes/matters of non-commercial nature involving the Government and its agencies.
The Mediation Council requires prior approval from the central government before issuing regulations related to its essential functions.
It is not clear why such prior approval is required.
This may also be questioned since the central government may be a party to mediations.
The Bill applies to international mediations only if they are conducted in India.
It does not provide for enforcement of settlement agreements resulting from international mediation conducted outside India.
Source: The Hindu
Prsindia.org
Previous Year Question
Q.1) Consider the following statements: As per the Industrial Employment (Standing Orders) Central (Amendment) Rules, 2018 (2019)
If rules for fixed-term employment are implemented, it becomes easier for the firms/companies to lay off workers
No notice of termination of employment shall be necessary in the case of temporary workman
Which of the statements given above is/are correct?
1 only
2 only
Both 1 and 2
Neither 1 nor 2
The Bail Law
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Syllabus
Prelims – Polity
Mains – GS 2 (Polity & Governance)
In News: Recently, the Supreme Court underlined that “there is a pressing need” for reform in the law related to bail and called on the government to consider framing a special legislation on the lines of the law in the United Kingdom.
What is the ruling about?
A two-judge Bench of Supreme Court issued certain clarifications to an older judgment delivered in July 2021 on bail reform (Satender Kumar Antil vs CBI).
Referring to the state of jails in the country, where over two-thirds lodged are undertrials, the Supreme Court underlined that arrest is a draconian measure that needs to be used sparingly.
Of this category of prisoners, majority of them are poor and illiterate and also would include women.
The court also linked the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset.
What is the law on bail?
The CrPC does not define the word bail but only categories offences under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
The CrPC empowers magistrates to grant bail for bailable offences as a matter of right.
Non-bailable offences are cognisable, which enables the police officer to arrest without a warrant.
In such cases, a magistrate would determine if the accused is fit to be released on bail.
And what is the UK law?
The Bail Act of the United Kingdom, 1976, prescribes the procedure for granting bail.
A key feature is that one of the aims of the legislation is reducing the size of the inmate population.
The law also has provisions for ensuring legal aid for defendants.
The Act recognises a “general right” to be granted bail.
For rejecting bail, the prosecution must show that grounds exist for believing the defendant on bail would not surrender to custody, would commit an offence while on bail, or would interfere with witnesses or otherwise obstruct the course of justice; unless the defendant must be detained for his own welfare or protection; or in other circumstances.
What has the Supreme Court held on reforms?
The court’s ruling is in the form of guidelines, and it also draws the line on certain procedural issues for the police and judiciary.
SEPARATE LAW FOR BAIL:
The court underlined that the CrPC, despite amendments since Independence, largely retains its original structure as drafted by a colonial power over its subjects.
The court made this point to signal that despite its rulings, structurally, the Code does not account for arrest as a fundamental liberty issue in itself.
It also highlighted that magistrates do not necessarily exercise their discretionary powers uniformly.
The court’s solution on this is the framing of a separate law that deals with the grant of bail.
INDISCRIMINATE ARRESTS:
The court noted that the culture of too many arrests, especially for non-cognisable offences, is unwarranted.
It emphasised that even for cognisable offences, arrest is not mandatory and must be “necessitated”.
Such necessity is drawn to prevent the committing of any further offense, for a proper investigation, and to prevent him/her from either disappearing or tampering with the evidence.
It held that lower courts must satisfy that these conditions are met and any non-compliance would entitle the accused for grant of bail.
BAIL APPLICATION:
There need not be any insistence of a bail application while considering the application under certain Section of the Code.
These sections relate to various stages of a trial where a magistrate can decide on release of an accused.
The Supreme Court held that in these circumstances, magistrates must routinely consider granting bail, without insisting on a separate bail application.
DIRECTION TO STATES:
The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.
Source: Indian Express
Previous Year Question
Q.1) With reference to India, consider the following statements: (2021)
Judicial custody means an accused is in the custody of the concerned magistrate and such accused is locked up in a police station, not in Jail.
During judicial custody, the police officer in charge of the case is not allowed to interrogate the suspect without the approval of the court.
Which of the statements given above is/are correct?
1 Only
2 Only
Both 1 and 2
Neither 1 nor 2
Nord Stream 1
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Syllabus
Prelims – Current Affairs
In News: The Nord Stream 1, Germany’s main source of gas from Russia, was shut down on July 11 for 10 days of scheduled maintenance work.
There are growing concerns in European countries that Russia would extend the temporary suspension of gas supplies in retaliation against the current sanctions leveled against Moscow.
What is Nord Stream 1?
Nord Stream 1 is a 1,224 km underwater gas pipeline that runs from Vyborg in northwest Russia to Lubmin in northeastern Germany via the Baltic Sea.
The pipeline is the primary route through which its gas enters Germany.
It transports 55 billion cubic metres of gas a year, of which most goes directly to Germany, while the rest travels west and southwards through onshore links to other countries and into storage caverns.
There have been growing concerns that there could be further restrictions to European gas supplies, well beyond the scheduled maintenance that has been imposed.
European countries rely on Russian energy for their cold winters, but now believe that Russia could weaponize their dependency as a response to their sanction due to the conflict in Ukraine.
What are Europe’s alternative sources of energy?
As an alternative source for energy, European countries have increasingly turned towards the US, from whom they purchase liquified natural gas (LNG) that comes via ships.
Since ship delivered gas ends up being far more expensive, there are also attempts to get non-Russian pipeline gas from Norway and Azerbaijan.
Source: Indian Express
James Webb space Telescope
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Syllabus
Prelims – Science and Technology
In News: NASA has revealed some stunning images of the universe taken from its James Webb Space Telescope.
NASA Webb space telescope images:
The first image from the Webb has been shared from NASA’s Goddard Space Centre and is the same deep field image of SMACS 0723.
Some of the cosmic objects in the image are pictured as they were 13.1 billion years ago.
The second image is a spectrum of the gas giant planet WASP-96b, located nearly 1,150 light-years from Earth.
This is the first spectrum of an exoplanet taken by Webb.
It reveals wavelengths that haven’t been revealed before. The spectrum reveals tell-tale signatures of water vapour on the planet.
The third image is a near-infrared image of the Southern Ring Nebula or the “Eight-burst Nebula,” a planetary Nebula surrounding a dying star.
The fourth image is an enormous mosaic of Stephan’s Quintet and the largest image taken by Webb to date.
The image shows the dramatic impact of huge shockwaves as one of the galaxies smashes through the cluster.
It also shows a black hole in the Quintet at a detail never seen before.
The last and final image released by NASA shows a star-forming region in the Carina Nebula called NGC 3324, and its “mountains” and “valleys” speckled with glittering stars.
Captured in infrared for the first time by Webb, the new image shows previously invisible areas of star birth.
What is NASA’s James Webb Telescope?
The telescope has been in the works for years.
NASA led its development with the European Space Agency (ESA) and the Canadian Space Agency.
It was launched aboard a rocket on December 25, 2021, and is currently at a point in space known as the Sun-Earth L2 Lagrange point, approximately 1.5 million km beyond Earth’s orbit around the Sun.
It is a giant leap forward in our quest to understand the Universe and our origins, as it will examine every phase of cosmic history: from the Big Bang to the formation of galaxies, stars, and planets to the evolution of our own Solar System.
Source: Indian Express
The Hindu
Transgender Persons (Protection of Rights) Act, 2019
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Syllabus
Prelims – Polity & Governance
Mains – GS 2 (Polity & Governance)
In News: Social Justice Ministry slamed the aviation regulator, demands guidelines for licensing of transgender persons as pilots.
The Directorate General of Civil Aviation’s (DGCA) denied commercial pilot license to a transgender candidate.
The actions of the DGCA violates the provisions stated under The Transgender Persons (Protection of Rights) Act of 2019, as it ends up being discriminatory by denying/ terminating employment or occupation on the basis of gender of the person.
The Transgender Persons (Protection of Rights) Act of 2019
Definition of a transgender person:
The Bill defines a transgender person as one whose gender does not match the gender assigned at birth.
It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra
Prohibition against discrimination:
The Bill prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to:
education;
employment;
healthcare;
access to, or enjoyment of goods, facilities, opportunities available to the public;
right to movement;
right to reside, rent, or otherwise occupy property;
opportunity to hold public or private office; and
access to a government or private establishment in whose care or custody a transgender person is.
Right of residence:
Every transgender person shall have a right to reside and be included in his household.
Employment:
No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.
Every establishment is required to designate a person to be a complaint officer to deal with complaints in relation to the Act.
Education:
Educational institutions funded or recognised by the relevant government shall provide inclusive education, sports and recreational facilities for transgender persons, without discrimination.
Health care:
The government must take steps to provide health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.
Certificate of identity for a transgender person:
A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
Welfare measures by the government:
The Bill states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society.
It must also take steps for their rescue and rehabilitation, vocational training and self-employment, etc.
National Council for Transgender persons (NCT):
The Council will advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons.
It will also redress the grievances of transgender persons.
Source: The Hindu
Revamping employment policy
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Syllabus
Mains – GS 3 (Economy – Employment)
Context: The Government of India has recently announced its plan to create 10 lakh government jobs in the next 18 months. Though the announcement has been called a historic step the government should consider number of factors.
Problems and Solutions
Vacancies are much higher
The number of vacant posts touches 30 lakh if we consider vacant positions in public sector banks, the defence forces and police, the health sector, central schools and central universities, judiciary etc
Thus just filling out 10 lakh out 30 lakh vacant post will the not solve the problem of unemployment and serious shortage of staff, which is then causing long delays in work, corruption and maybe other inefficiencies.
Quality as issue
Another major concern is about the quality of employment that will be generated through this plan.
The share of contract workers in total government employment has been increasing rapidly in recent years — from 11.11 lakh in 2017 to 13.25 lakh in 2020 and to 31 lakh in 2021.
In addition, there are “honorary workers” such as Anganvadi workers, their helpers, ASHA workers, etc.
These employees of the government earn a lower salary and are not entitled to decent work conditions including a minimum package of social security.
The Government must ensure that the employment generated under its plan will be of a standard quality.
More jobs are needed
Given the backlog of about 30 million unemployed people and an annual addition of 50 lakh-70 lakh workers every year (World Bank), the dimensions of India’s unemployment problem today are formidable.
The generation of a mere 10 lakh jobs in the next 18 months is too little.
This scheme of the Government will hardly provide any relief to the youth of the country; and will not have much of an impact on the present unemployment problem.
It is important to note here that the performance of the private sector in creating employment opportunities has remained dismal.
In this situation it is all the more important for the Government to ensure as many jobs as possible.
Focus on basis needs
Government will have to take responsibility for meeting these basic needs without depending on privatisation — at least for the bottom 40% of the population.
The important task for the Government would be to take much better direct care of basic well-being, human development and human resource development, and the basic infrastructure of the bottom population without privatisation in these areas.
Another major task would also be to reorient the industrialisation policy to focus on labour-intensive sectors of the economy, and promote Micro, Small and Medium Enterprises (MSMEs).
Urban employment
The fact that the urban economy has been badly hurt by the pandemic, a carefully designed urban employment guarantee programme would be most desirable to create ample urban employment avenues for urban youth.
The urban programme should include: basic urban services, where the youth would get special training so that they can be absorbed in the mainstream economy.
Thus the Government gesture of filling vacant posts, will have to be followed by radical changes in the Government’s employment policy.
Source: The Hindu
Municipal finances
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Syllabus
Mains – GS 2 (Polity & Governance)
Context: The health of municipal finances is a critical element of municipal governance which will determine whether India realises her economic and developmental promise.
Three decades since 74th CAA, 1992 for evolution of powers to urban local bodies (ULBs), growing fiscal deficits, constraints in tax base expansion, and weakening of institutional mechanisms that enable resource mobilisation remain challenges to ULBs.
Revenue losses after implementation of the Goods and Services Tax (GST) and the pandemic have exacerbated the situation.
Problems
Share of own revenue
The ULBs’ own sources of revenue were less than half of their total revenue, with large untapped potential.
The ULBs’ key revenue sources are taxes, fees, fines and charges, and transfers from Central and State governments, which are known as inter-governmental transfers (IGTs).
The share of own revenue to total revenue is an important indicator of ULBs’ fiscal health and autonomy.
This ratio reflects the ULBs’ ability to use the sources they are entitled to tap, and their dependency on IGTs.
Cities with a higher share of own revenue are more financially self-sustaining.
Dependent on IGTs
Many ULBs were highly dependent on IGTs.
Most ULBs were highly dependent on external grants — between 2012-13 and 2016-17, IGTs accounted for about 40% of the ULBs’ total revenue.
Stable and predictable IGTs are particularly important since ULBs’ own revenue collection is inadequate.
Tax revenue depends on the size
Tax revenue is the largest revenue source for larger cities, while smaller cities are more dependent on grants.
There are considerable differences in the composition of revenue sources across cities of different sizes.
Operations and maintenance (O&M)
O&M expenses are on the increase but still inadequate.
O&M expenses are crucial for the upkeep of infrastructure and for maintaining quality of service delivery.
The share of O&M expenses in ULBs’ total revenue expenditure increased from about 30% in 2012-13 to about 35% in 2016-17.
While the expenses were on the rise studies indicate that they remained inadequate.
Thus the scale of municipal finances in India is undoubtedly inadequate.
Way Forward
Tapping into property taxes, other land-based resources and user charges are all ways to improve the revenue of a ULB.
IGTs assume significance in the fiscal composition of ULBs, and a stable support from Central and State governments are crucial till ULBs improve their own revenues.
Measures need to be made to also cover O&M expenses of a ULB for better infrastructure and service.
Source: The Hindu
Free Trade Agreements (FTAs)
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Syllabus
Mains – GS 2 (Governance – Policies); GS 3 (Economy)
Context: Concerns of Indian players should be taken care of while crafting FTAs
In recent months, India has signed trade agreements with Australia and the UAE.
In the last week of June, New Delhi began talks for a similar agreement with the EU.
Before entering into trade agreements, India needs to take care of a few key concerns.
To ensure that the domestic industry is not made to compete on unequal terms with the partner countries
It has been observed that when India is an importer, the preferential tariffs that accrue as a result of trade agreements are significantly lower than the rates charged from countries given Most Favoured Nation (MFN) status by New Delhi.
But when the partner country is the importer, preferential tariffs on Indian goods, in most cases, are closer to the MFN tariffs.
As a result, Indian exporters do not get the same returns as their counterparts in the partner countries.
Offset clauses
Offset clauses— where the exporter is obliged to undertake activities that directly benefit the importing country’s economy — should be built into trade agreements, especially for technology intensive sectors.
An emergency action plan
In February 2020, the US made India ineligible for claims under GSP, America’s oldest preferential trade scheme.
A contingency plan should be in place to tackle such situations.
Sunset clause
India should also take a cue from the US-Mexico-Canada Agreement, to incorporate a “sunset” clause in trade agreements.
The pact should include periodic reviews and should end on agreed year.
Parity between services and merchandise
India should negotiate for parity between services and merchandise.
India’s trade in services is low.
There is significant room for expansion of trade in the banking, financial services industry, legal and accounting services.
A well-crafted trade agreement could help India enhance its share in global trade and help attain the government’s target of making the country a $5-trillion economy.
Source: Indian Express
Article 142 - Complete justice
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Syllabus
Prelims – Polity
Mains – GS 2 (Polity & Governance)
Context: The futility of the bail order granted by Supreme Court to Mohammed Zubair has bought the focus on Complete Justice as stipulated in Article 142 of Indian Constitution.
Article 142 – It stated that any decree or order passed by the Supreme Court to do complete justice was enforceable throughout the territory of India.
Powers and Challenges of Supreme Court
The Supreme Court of India is regarded as the world’s most powerful top court, on account of its wide power of judicial review.
It has the jurisdiction to issue writs under Article 32 of the Constitution.
It also has the original jurisdiction under Article 131 of the Constitution.
There is also wide appellate power under Articles 132, 133, 134 and 136 of the Constitution.
It has the power to “make such order as is necessary for doing complete justice in any cause or matter pending before it”, as per Article 142 of the Constitution.
Yet, the top court has shown itself to be helpless when issues of individual liberty have been placed before it on very many occasions.
The jail jurisprudence of the executive effectively surpasses the Court’s bail jurisdiction.
The executive is able to register multiple FIRs in different States of India so as to ensure that the dissident is not released from prison even if bail is granted in some of the cases.
Rule by law
The criminal justice system in tough times degenerates into rule by law that replaces rule of law.
The law becomes an effective device in the hands of the Government for the purposes of a witch-hunt and this operates against the opponents of a regime.
Rule by law indicates that decisions are forced upon a citizenry, while Rule of law is to control the unlimited exercise of the power by the supreme lawmaking authority of the land.
A constitutional court should be able to evolve a mechanism of its own to preserve the democratic foundation of the country by intervening in the incremental process of nation’s “deconstitutionalisation”.
Create Judicial Atmosphere
Top court must act as a determined umpire who checks the executive’s excesses.
The Supreme Court’s intervention in the Centre’s COVID-19 vaccine policy and the Pegasus episode illustrates this point.
The need is to expand the latter approach and to create and perpetuate a democratic judicial atmosphere that supports the cause of freedom.
The Indian Supreme Court is constitutionally equipped with the power to invoke its jurisdiction for the larger cause of liberty, even by deviating from the conventional technical route.
The “complete justice” under Article 142 is meant to be used such scenarios
In Delhi Development Authority vs Skipper Construction Company (1996), the top court said that the power under Article 142 should remain “undefined and uncatalogued, so that it remains elastic enough to be moulded to suit the given situation”.
Treating them as a class
It is essential for the Supreme Court of India to treat political prisoners and dissenters facing multiple FIRs and undergoing unjustifiably long incarceration as a class.
It needs jurisprudence at the normative level to tackle the technical arguments that create a false notion of rule of law
The Court should immediately ensure that vindictive incarceration does not continue even for a day.
The present case is one that demonstrates the juridical deficits of today’s Supreme Court. It is, therefore, an imperative to evolve an effective jurisprudence of “complete justice” by focusing on personal liberty, and thus preserving the country’s democratic legacy.
Source: The Hindu
Previous Year Question
Q.1) With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following? (2020)
The decisions taken by the. Election Commission of India while discharging its duties cannot be challenged in any court of law.
The Supreme Court of India is not constrained in the exercise of its powers by the laws made by Parliament.
In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.
State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.
Baba’s Explainer – Uncooperative Federalism
Uncooperative Federalism
Syllabus
GS-2: Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure
Context: The recent invocation of the phrase ‘uncooperative federalism’ by the Supreme Court in its recent judgment in Union of India versus Mohit Minerals Pvt. Ltd. marks an important moment in the study of Indian federalism.
This also adds value thttps://iasbaba.com/2022/07/babas-explainer-uncooperative-federalism/o literature across the globe that suggests that there is no one model of federalism, and that innovative methods could be adopted to explain different federal arrangements and understand disputes.
Read Complete Details on Uncooperative Federalism
Daily Practice MCQs
Daily Practice MCQs
Q.1) Consider the following statements about Mediation Bill, 2021
The Bill makes participation in pre-litigation mediation mandatory
The disputes affecting the rights of third parties is not fit for mediation
A party may withdraw from mediation after two sessions
Choose the correct statements:
1 and 2
1, 2 and 3
1 and 3
2 and 3
Q.2) Consider the following statements
In India Code of Criminal Procedure categories offences under the Indian Penal Code as bailable and non-bailable.
Non-bailable offences are cognisable, which enables the police officer to arrest without a warrant.
Choose the incorrect statements:
1 only
2 only
Both 1 and 2
Neither 1 nor 2
Q.3) Which of the below given pairs is/are correctly matched?
Article
Provisions
Article 32
Writ Jurisdiction of Supreme Court (SC)
Article 131
Ordinance making power of President
Article 142
Original jurisdiction SC to decide upon a matter of dispute between the States or between Union and State
Choose the correct code:
1 only
1 and 2
1, 2 and 3
2 and 3
Comment the answers to the above questions in the comment section below!!
ANSWERS FOR ’13th JULY 2022 – Daily Practice MCQs’ will be updated along with tomorrow’s Daily Current Affairs.
ANSWERS FOR 12th JULY 2022 – Daily Practice MCQs
Answers- Daily Practice MCQs
Q.1) – d
Q.2) – c
Q.3) – d