SEALED COVER JURISPRUDENCE
1. Context
Squashing the Centre’s order banning the broadcast of Media One, a Malayalam news channel, the Supreme Court Wednesday said the Union of India had raised the claim of national security in a “cavalier manner” to refuse renewal of licence and said the denial of security clearance to a channel for its views produces “a chilling effect on free speech and particularly on press freedom”
2. What is "Sealed Cover Jurisprudence"
It is the practice of seeking and accepting information from government agencies in sealed envelopes that can only be perused by judges
It has been followed by the Supreme Court in the past, and sometimes lower courts as well
This can happen in broadly two kinds of cases:
(i) when the information is connected to an ongoing investigation and,
(ii) when the information is personal or confidential in nature
It is understood that in the first situation, an ongoing investigation could be impeded by the disclosure, and in the second situation, an individual’s privacy could be affected or there may be a breach of trust
3. Issues around it
- The secrecy could end up preventing a party from having a full overview of the charges against them
- Also, sealed covers are at a fundamental level incompatible with the idea of an open court and a transparent justice system
- the non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority sets a dangerous precedent
- The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque
- It Perpetuates two Problems
- Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover
- Secondly, it perpetuates a culture of opaqueness and secrecy, It bestows absolute power in the hands of the adjudicating authority
- It also tilts the balance of power in a litigation in favour of a dominant party which has control over information. Most often than not this is the state
- A judicial order accompanied by reasons is the hallmark of the justice system… The sealed cover procedure affects the functioning of the justice delivery system both at an individual case- to case level and at an institutional level
- The Supreme Court in its judgment clarified that “this is not to say that all information must be disclosed in the public”
- It gave the example of “sensitive information affecting the privacy of individuals such as the identity of a sexual harassment victim”
- But it also underlined that “the measure of nondisclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve”, and that “the exceptions should not…become the norm”
4. Instances of Sealed Covers
- In the Rafale aircraft case, the court accepted the government’s argument that the matter pertained to the Official Secrets Act
- While refusing to stay the arrest of activists held in the Bhima-Koregaon case, it relied on “evidence” submitted by the Maharashtra police in a sealed envelope
- In the NRC exercise in Assam which led to about 19 lakh citizens being excluded from the list, the apex court sought details from the NRC coordinator in a sealed cover with neither the government nor the affected parties being allowed to look at them
- In the case involving corruption allegations against former CBI director Alok Verma, the court insisted that the Central Vigilance Commission submit its report in a sealed cover, ostensibly to maintain public confidence in the agency
- In the 2G case, in which it had cancelled a large number of licences, the court had relied on sealed covers
- During the hearing in the Chidambaram case, while trying to persuade the court to refer to information in the sealed cover, Solicitor General Tushar Mehta had referred to a case from 1997, involving P V Prabhakar Rao, the son of former Prime Minister P V Narasimha Rao
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For Prelims: Judiciary, Collegium
For Mains:
1. Judiciary must secure the rule of law and protect the rights and liberties of citizens. Discuss (250 Words)
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Previous Year Questions:
1.Which of the following factors constitutes the best safeguard of liberty in a liberal democracy? (UPSC 2021)
(a) A committed judiciary (b) Centralization of powers (c) Elected government (d) Separation of powers |
Source: indianexpress
COMPENSATORY AFFORESTRATION IN INDIA
1. Context
As part of its international climate change commitments, India has promised to increase its forest and tree cover to ensure that they are able to absorb an additional amount of 2.5 billion to 3 billion tonnes of carbon dioxide equivalent by 2030
Unlike the two other commitments India has made one related to improvement in emissions intensity and the other about the deployment of renewable energy the forestry target is a relatively difficult one to achieve
2. Background
- Forests are under stress due to the need for rapid industrial and infrastructure development, and accompanying urbanization
- In the last 10 years, more than 1,611 square km of forest land, a little more than the area of Delhi, has been cleared for infrastructure or industrial projects. Nearly a third of this 529 sq km has been cleared in the last three years itself
- A number of tree plantation, afforestation and reforestation programmes are being implemented to increase India’s forest and tree cover
- These include the Green India Mission, national afforestation programme, and the tree plantation exercises along the highways and railways
- Other flagship government programmes like the national rural employment guarantee scheme (MGNREGS) and Namami Gange also have significant afforestation components
3. Compensatory Afforestation
- The showpiece effort for extending India’s forest cover has been its compensatory afforestation programme that seeks to ensure that forest lands getting ‘diverted’ for non-forest purposes, like industrial or infrastructure development, is mandatorily accompanied by afforestation effort on at least an equal area of land
- While the plantation exercise on new lands cannot be compared with the fully grown forests getting diverted, compensatory afforestation made a legal requirement through the Compensatory Afforestation Fund Act of 2016 does ensure that newer parcels of land are earmarked for developing them as forests
- Project developers, public or private, are required to fund the entire afforestation activity on these new lands
- The law also acknowledges the fact that newly afforested land cannot be expected to immediately start delivering the range of goods and services timber, bamboo, fuelwood, carbon sequestration, soil conservation, water recharge, and seed dispersal that the diverted forests were providing
- As a result, project developers are also asked to pay for the Net Present Value (NPV) of the forests being cleared, based on a calculation decided by an expert committee
- According to the recently revised calculations, companies have to pay NPV at rates ranging between Rs 9.5 lakh and Rs 16 lakh per hectare, depending on the quality of forests getting diverted
- The compensatory afforestation law came into being only in 2016, but the concept has existed since the 1980s, as an offshoot of the Forest Conservation Act of 1980, which made it mandatory for project developers to seek ‘clearance’ of the Environment Ministry for any diversion of forest land
- The practice got institutionalised through the Supreme Court orders and observations during the hearings of the famous Godavarman case in the 1990s and 2000s
- But due to other litigation, the money collected for compensatory afforestation before 2016 had remained largely unutilised. Serious work on compensatory afforestation has begun only after the 2016 Act
- More than Rs 66,000 crore has been realised in the Central fund through different levies prescribed in that law
- A substantial part of this nearly Rs 55,000 crore has already been sent to the state governments
- State governments have to prepare an annual plan of operations for afforestation work through this money
- The APOs contain details of money that is intended to be spent during a financial year for specific works related to afforestation
- Once this plan gets approval from the Compensatory Afforestation Management and Planning Authority (CAMPA) at the Central level, the state government transfers the approved amounts to the state forest departments, which then carry out the work
- Government records show that APOs by the state governments have not made full utilisation of the funds at their disposal, and even the money approved for this APOs has not been entirely spent
4. Other fees that are levied
- All this money is meant to be spent solely on increasing, or improving the quality of, forest cover in the country, or on works that help this objective
- The money is parked in special funds created for this purpose at the Central and state levels
- The money is first deposited in the Central fund, from where it gets disbursed to states where the projects are located
- The Central fund can keep up to 10 per cent of the total money for spending towards administrative expenses. The rest has to be sent to the states according to their share
- Critics say compensatory afforestation had legitimised clearing of forests, and see it as an example of ‘greenwashing’
- The contrary view is that since the clearing of forests for one or the other purpose cannot be entirely eliminated, compensatory afforestation is a good mechanism for attempting to make up for these losses to some extent
5. Other Practices
- The land that is made available for afforestation usually cannot be used for any other purpose, and is often extremely unsuitable for growing plantations
- While there are examples of some good plantations having come up, the poor quality of land poses a difficult challenge in most instances
- Also, while the law mandates at least an equal area of land to be provided for compensatory afforestation, rarely is a contiguous stretch of land made available for this purpose
- The total area of land is often distributed over twenty or more different locations
- Even if very good plantations were grown, these can never be compared to the kind of forests that often get diverted
- Activists working on the ground complain that often the plantations are monocultures, meaning they contain only one species of plants
Source: indianexpress
NATURAL JUSTICE AND PROPORTIONALITY
1. Context
The Supreme Court, on Wednesday (April 5), set aside the orders passed by the Ministry of Information & Broadcasting (MIB) on January 31, 2022, and the Kerala High Court on March 2, 2022, refusing to renew Malayalam news channel Media One’s broadcast license
2. Background
- The Ministry of Information and Broadcasting, on January 31, 2022, refused to renew the broadcast license of the Malayalam channel MediaOne on the ground that the Ministry of Home Affairs had declined to grant it security clearance while considering its request for renewal of license
- The MHA had cited alleged links between the channel’s promoters Madhyamam Broadcasting Limited and Jamaat-e-Islami Hind for denying the security clearance to Media One. Following this, the channel was taken off the air
- This led to the channel approaching the Kerala High Court against the Centre’s action
- During the hearing in the HC, the Centre told HC that the decision to revoke the license was based on grounds of national security
- However, on March 15, last year, the Apex Court stayed the Kerala High Court order and allowed the channel to resume operations
- In the hearing before the SC, the channels’ promoters argued that they were not given a chance to defend themselves as the national security reasons cited to deny renewal of their license were submitted to the HC in a sealed cover
- Further, it was contended that the fundamental right to freedom of speech and expression, which includes press freedom, can be restricted only on the grounds enumerated under Article 19(2) and there was no allegation that the channel violated the Programme and Advertising Code prescribed under the Cable Television Networking (Regulation) Act 1995 and the 1994 Rules
3. Principles of Natural Justice
- The bench allowed the challenge to the order of the MIB(Ministry of Info & Broadcasting) and judgment of the High Court on account of the principles of natural justice constitutionalized by its judgment in its 1978 ruling in “Maneka Gandhi vs Union of India”
- The Court observed that “that there is an inherent value in securing compliance with the principles of natural justice independent of the outcome of the case.”
- Actions which violate procedural guarantees can be struck down even if non-compliance does not prejudice the outcome of the case, the court held
- It also stated that “the core of the principles of natural justice breathes reasonableness into procedure”
- Additionally, the court clarified that in the present case, the burden is on the claimant to prove that the procedure followed infringes upon the core of procedural guarantees
- In its judgment, the court also observed that the duty to act fairly that is derived from common law is not exhaustively defined in a set of concrete principles, and courts, in India and abroad, have demonstrated considerable flexibility in the application of the principles of natural justice by fine-tuning them to different situations
- However, the court also added that such a concept of natural justice “cannot be put into a ‘straitjacket formula’” and is “incapable of a ‘precise definition’”
- Finally, the court upheld its judgments in Ex-Armymen’s Protection Services and Digi Cable Network to hold that while “principles of natural justice may be excluded when on the facts of the case, national security concerns overweigh the duty of fairness”, “the state has been unable to prove that these considerations arise in the present factual scenario.”
- The Court added that though confidentiality and national security are legitimate aims for the purpose of limiting procedural guarantee, a “blanket immunity from the disclosure of all investigative reports cannot be granted.”
4. Proportionality
- The judgment went on to explain that the validity of the claim of involvement of national security considerations must be assessed on the test of:
- whether there is material to conclude that the non-disclosure of information is in the interest of national security
- whether a reasonable prudent person would draw the same inference from the material on record
- Even assuming that non-disclosure is in the interest of confidentiality and national security, the means adopted by the respondents do not satisfy the other prongs of the proportionality standard
- The top court then reiterated that courts can assess the validity of public interest immunity claims albeit based on the “structured proportionality standard”
- On the practice of sealed covers, the court observed that “the power of courts to secure material in a sealed cover when contradistinguished with the scope of assessment of public interest immunity claims is rather unguided and ad-hoc.”
- Additionally, the Court said that “while public interest immunity claims conceivably impact the principles of natural justice, sealed cover proceedings infringe the principles natural justice and open justice.”
- It also suggested that the court could have taken the course of redacting confidential portions of the document and providing a summary of the document’s contents
- The non-renewal of permission to operate a media channel is a restriction on the freedom of the press which can only be reasonably restricted on the grounds stipulated in Article 19(2) of the Constitution
- The reasons for denying a security clearance to MBL, that is, its alleged antiestablishment stance and the alleged link of the shareholders to JEI-H, are not legitimate purposes for the restriction of the right of freedom of speech protected under Article 19(1)(a) of the Constitution
Source: indianexpress
DEEP SEA MINING
1. Context
Currently there is no internationally agreed code for mining under the ocean. After two weeks of negotiations ending , however, the International Seabed Authority has now decided that companies can apply from July to mine the ocean floor. But campaigners and even corporations are pushing back due to fears of the massive environmental impact
2. Deep Sea and Mining
- The deep sea is a trove of biodiversity, rich in living resources used in medicines and critical in regulating the climate and providing spawning and feeding grounds for fish
- Whether copper or nickel for batteries, cobalt for electric cars or manganese for steel production: rare earth minerals and metals are fundamental to the renewable energy
- technologies driving the world’s energy transition
- But while demand is rising fast, the resources are also becoming scarcer globally
- According to estimates, in just three years the world will need twice as much lithium and 70% more cobalt.
- And this is despite the slow progress of the energy transition. According to the International Energy Agency, if climate goals were properly pursued through the massive expansion of renewable energy, about five times as much lithium and four times as much cobalt would be needed by 2030
- The projected production volumes for these raw materials fall far short of demand. To close this gap, some countries and companies now want to mine the resources in the deep sea
3. Seabed and Minerals
- So-called polymetallic nodules, also known as manganese nodules, are driving the rush to mine seabeds
- These potato-sized lumps contain high proportions of nickel, copper, manganese, rare earths and other valuable metals
- The best-studied area is currently the seabed at between 3,500 and 5,500 meters [between 11,500 feet and 18,000 feet] in the Clarion-Clipperton Zone in the eastern Pacific Ocean near the US state of Hawaii
- Spanning thousands of kilometers, the area contains more nickel, manganese and cobalt than any known area on land
- The basin in the central Indian Ocean and the seabed off the Cook Islands, Kiribati atolls and French Polynesia in the South Pacific are also of interest for potential extraction
- The nodules’ composition happens to be remarkably well-aligned with the needs of electric vehicle makers
- Carmakers will need a great deal more of these metals in order to make battery cathodes and electrical connectors for an electric vehicle fleet of around a billion cars and trucks by mid-century
- The Canada-based company specializes in the medium and long-term exploitation of mineral resources in the Clarion-Clipperton Zone
- Although manganese nodules are not yet being mined anywhere in the world, that could soon change as they practically lie directly on the seabed and can be easily extracted without breaking up rock layers or eroding the seabed
4. Marine Life
- Seabed mining is made easy when a huge vacuum can simply travel over the ocean floor to suck up the nodules which are then brought to the surface with a hose
- That means all organisms, bacteria and higher organisms that live in and on the sediment and on the nodules are completely sucked in
- These organisms also require manganese nodules to survive, meaning they “won’t come back for millions of years
- Rapid regeneration is impossible because it can take a million years for a nodule to grow a few millimeters
- Scientists and opponents of deep-sea mining also fear that the clouds of sediment from the suction could cause enormous damage to ecosystems within a radius of several hundred kilometers
- Potential victims would include plants, creatures in the middle water depths and microorganisms whose respiratory tracts could be blocked by the sediment
5. Environmental Balance
- The Metals Company aims to mine the nodules in the Clarion-Clipperton Zone, and makes no secret of the possible damage to marine biodiversity
- However, the company has argued that deep-sea mining could be less damaging to the environment than extraction on land, pointing out that it would emit 80% less greenhouse gas emissions
- The Metals Company has also claimed that deep-sea mining would be largely automated, avoiding the exploitation of cobalt miners, including children, in Congo, where most of the world’s cobalt is mined today
- Possible exploitation of deep-sea deposits is regulated by the International Seabed Authority, which was established under the UN Convention on the Law of the Sea
- It has awarded 31 exploration contracts so far worldwide, but none for commercial mining activities
- These permits allow companies to explore the resources and potential for future extraction, but also require them to collect data for environmental analysis
- The Pacific island state of Nauru has been collaborating with The Metals Company to force through a code by 2023 so applications can be decided. But other island nations have called for a moratorium on deep-sea mining
- Deep-sea mining would go beyond harming the seabed and have a wider impact on fish populations, marine mammals and the essential function of the deep-sea ecosystems in regulating the climate
Source: indianexpress
LANDSLIDES
1. Context
In April 2022, the Central Electricity Authority (CEA) advised the NHPC’s 2000-MW Lower Subansiri hydroelectric project, near North Lakhimpur along the Assam-Arunachal Pradesh border, to engage a specialised agency to examine the strength of the project’s powerhouse retention wall, and also assess the impact of diversion tunnels on the site’s slope stability before the onset of monsoon
2. Key Points
- A new report looked at landslide-vulnerable regions in 17 states and two Union Territories of India in the Himalayas and Western Ghats.
- Rajouri, Thrissur, Pulwama, Palakkad, Malappuram, South Sikkim, East Sikkim and Kozhikode in Kerala, Jammu Kashmir and Sikkim are other high-risk districts found in Landslide Atlas of India 2023.
- Hyderabad-based National Remote Sensing Centre created the all-India database of nearly 80, 000 landslides that occurred from 1998 to 2022.
3. Landslides in India
- The recent cases of land subsidence in Joshimath, Uttarakhand, captured the spotlight.
- On June 29, 2022, at least 79 people were killed in a landslide in the Noney district of Manipur.
- The risk analysis in the report was based on the density of human and livestock populations, which indicates the impacts on people due to these landslides.
- The disaster in Kedaranath in 2013 and the landslides caused by the devastating Sikkim earthquake in 2011 are also included in this atlas.
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Between 1988 and 2022, the maximum number of landslides 12, 385 recorded in Mizoram.
Uttarakhand followed it at 11, 219, Tripura at 8, 070, Arunachal Pradesh at 7, 689, and Jammu and Kashmir at 7,280. Kerala saw 6,039, Manipur 5,494 and Maharashtra recorded 5, 112 incidents of landslides.
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- Globally, landslides rank third in terms of deaths among natural disasters.
- However, deforestation due to unplanned urbanisation and human greed increases the risk of such incidents.
- In 2006, about 4 million people were affected by landslides, including a large number of Indians.
- India is among the four major countries where the risk of landslides is the highest; it added. If we look at the figures, about 0.42 million square kilometres in the country are prone to landslides, which is 12.6 per cent of the total land area of the country.
- However, the figure does not include snow-covered areas. Around 0.18 million sq km of landslide-prone areas in the country are in North East Himalayas, including Darjeeling and Sikkim Himalayas.
- Of the rest, 0.14 million sq km falls in North West Himalaya (Uttarakhand, Himachal Pradesh and Jammu and Kashmir); 90, 000 sq km in the Western Ghats and Konkan hills (Tamil Nadu, Kerala, Karnataka, Goa and Maharashtra) and 10, 000 sq km in Eastern Ghats of Aruku in Andhra Pradesh.
4. Reasons for landslides
- Sudden heavy rains due to climate change are also increasing landslides. Around 73 per cent of landslides in the Himalayan region are attributed to heavy rains and reduced water-absorbing capacity of the soil.
- Global climate change is causing heavy rainfall that erodes steep slopes with loose soil found in a 2020 study by the Indian Institute of Technology in Delhi.
- Therefore, the increasing number of landslides can no longer be termed as just natural disasters, as human actions have also played a major role in it.
5. Data On Landslides
- Uttakarkhand, Kerala, Jammu and Kashmir, Mizoram, Tripura, Nagaland and Arunachal Pradesh reported the highest number of landslides during 1998 – 2022
- Mizoram topped the list, recording 12,385 landslide events in the past 25 years, of which 8,926 were recorded in 2017 alone
- Likewise, 2,071 events of the total 2,132 landslides reported in Nagaland during this period occurred during the 2017 monsoon season
- Manipur, too, showed a similar trend, wherein 4,559 out of 5,494 landslide events were experienced during the rainy season of 2017, Of the total 690, Tamil Nadu suffered 603 landslide events in 2018 alone
- Among all these states, an alarming situation is emerging from Uttarakhand and Kerala
- While Uttarakhand’s fragility was recently exposed during the land subsidence events reported from Joshimath since January, this Himalayan state has experienced the second highest number (11,219) of landslides since 1998, all events since occurring post 2000
- The year-wise number of landslide events in the state is: 2003 (32), 2010 (307), 2012 (473), 2013 (6,610), 2017 (1), 2021 (329) and 2022 (1)
- The number of districts with the maximum landslide exposure are in Arunachal Pradesh (16), Kerala (14), Uttarakhand and Jammu and Kashmir (13 each), Himachal Pradesh, Assam and Maharashtra (11 each), Mizoram (8) and Nagaland (7)
- Kerala has been consistently reporting massive landslides since it suffered the century’s worst floods in 2018
- The year-wise landslide events here are 2018 (5,191), 2019 (756), 2020 (9) and 2021 (29).
- From the events and images obtained, the NRSC ranked Rudraprayag in Uttarakhand at the top of 147 vulnerable districts
- It has the highest landslide density in the country, along with having the highest exposure to total population and number of houses
For Prelims & Mains
| For Prelims: Landslides, climate change, ISRO, Disaster management, National Remote Sensing Centre, Landslide Atlas of India |
Previous year questions
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1. Which of the following statements in respect of landslides are correct? (NDA 2022) 1. These occur only on gentle slopes during rain.
2. They generally occur in clay-rich soil.
3. Earthquakes trigger landslides.
Select the correct answer using the code given below. A. 1 and 2 B. 2 and 3 C. 1 and 3 D. 1, 2 and 3 Answer: (B) For Mains: 1. Describe the various causes and the effects of landslides. Mention the important components of the National Landslide Risk Management Strategy. (250 words) (2021)
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Source: The Down to Earth
