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Death Penalty Abolition Debate

Death Penalty

| Governance | Mains Paper 2: Executive & Judiciary,Governance, Transparency & Accountability, Citizens Charters
Note4Students

From UPSC perspective, the following things are important :

Prelims level: Article 21

Mains level: Paper- Examining the death penalty

Context

On April 22, a Bench of the Supreme Court of India, led by Justice U.U. Lalit, decided to critically examine the routine and abrupt way in which trial judges often impose the death penalty on convicts.

Individualistic approach

  • The challenge before the Court in the instant case of Irfan vs State of Madhya Pradesh was to identify the mitigating circumstances and to ensure a convict-centric approach so that the imposition of capital punishment becomes rarer, fairer, and principled.
  • According to the Court, “a ‘one size fit for all’ approach while considering mitigating factors during sentencing should end”.
  • Mitigation expert: The Bench indicated the need for mitigation experts to assist trial courts in reaching a correct conclusion on whether one should be sent to the gallows or not.
  • The Court seemed to think that an individualistic approach that examines the social, economic, emotional, and genetic components that constituted the offender rather than the offence, would go a long way in evolving a just and judicious sentencing policy.
  • An analysis of the possible reasons to avert the death penalty is reflected in a series of recent verdicts such as Lochan Shrivas vs State of Chhattisgarh (2021) and Bhagchandra vs State of Madhya Pradesh (2021).
  • These reasons might include socio-economic backwardness, mental health, heredity, parenting, socialisation, education, etc.

Background of the humane and reformist framework

  • The special reason: According to Section 354(3) in the Code of Criminal Procedure, while imposing the capital punishment, the judge should specify “the special reasons” for doing so.
  • It was in Bachan Singh vs State of Punjab (1980) that the Constitution Bench suggested a humane and reformist framework in the matter.
  • Bachan Singh requires the trial courts not only to examine the gravity of the offence but also the condition and the ‘reformability’ of the accused. 
  • Not unconstitutional: The Court, in Bachan Singh, refused to declare the death penalty as unconstitutional. 
  • It abundantly implied that no person is indubitably ‘irreformable’.
  • It had the effect of practically undoing the death penalty provision, if taken in its letter and spirit.
  • Person-centric approach: This person-centric approach, for its materialisation, needs a different judicial acumen that recognises the convict in her multitudes.

Is the Bachan Singh doctrine followed?

  • The Bachan Singh principle was followed more in its breach than in compliance even by the Supreme Court.
  • In Ravji vs State of Rajasthan (1995), the Supreme Court said that it is the nature of the crime and not the criminal which is germane for deciding the punishment.
  • Several other cases also were decided by ignoring the Bachan Singh doctrine, as noted by the Supreme Court itself in Santhosh Kumar Satishbhushan Bariyar vs State of Maharashtra (2009) and Rajesh Kumar vs State (2011).
  • This egregious judicial error will have to be kept in mind while the Court revisits the issues related to mitigating factors and individual-centered sentencing policy in the Irfan case.
  • Shortcomings of Bachan Sing: Bachan Singh did not, in concrete terms, elaborate on the mitigating factors and the methods to gather them to avert the death penalty.
  • Nor did it explain the issues such as burden of proof and standard of proof in detail.

Issue of misuse and overuse

  • Misuse of sedition provision: The Indian experience shows that whenever the Court tries to dilute the harshness of penal provisions by a balancing approach, instead of striking down the provision, the instrumentalities of the state (including the police, the prosecution and the court) continue to overuse or misuse the provisions.
  • The Supreme Court endorsed the validity of the sedition law (Section 124A of the Indian Penal Code) with a rider that it could be invoked only when there is an incitement to violence.
  • But the state seldom acts based on interpretation of the law. 
  •  Many were booked for the charge of sedition since then for mere words, innocent tweets or harmless jokes.

Social implications

  • Disproportionate effect on the poor: In India, as elsewhere, the poor, rather than the rich, are sent to the gallows.
  • Ineffectiveness of legal assistance: In Williams vs Taylor (2000), the U.S. Supreme Court said that failure of the defence lawyer in highlighting the mitigating factors that could lead to avoidance of capital punishment makes the legal assistance ineffective. 
  • Therefore, it infringes constitutionally guaranteed rights.
  • In the Indian scenario, the legal assistance received by the poor facing serious charges is far from satisfactory.
  • Mitigating factors not placed: And in the matter of sentencing too, the mitigating factors are either not placed before the trial court or not persuaded adequately to convince the trial judge to avoid the death penalty.

Way forward

  • Taking empirical lessons from the fate of Bachan Singh, the Supreme Court may have to now ask the more fundamental question posed and negatived in Bachan Singh — the question of the constitutional validity of death penalty.
  • Comprehensive report: The Court, in the instant case, will have to evolve a legal device for procurement of a comprehensive report dealing with the socio-economic and hereditary backgrounds of the accused from experts in the fields of social work, psychiatry, psychology, anthropology, etc.
  • Violation of Article 21: The Court may have to revisit Bachan Singh itself in so far as it refused to declare the death penalty as violative of the right to life envisaged under Article 21 of the Constitution.
  • Across the world, 108 nations have abolished death penalty in law and 144 countries have done so in law or practice, according to the Amnesty Report of 2021.
  • Judicial errors: In the Indian context, where judgmental error is quite frequent and the quality of adjudication is not ensured, what is required is a judicial abolition of death penalty. 

Conclusion

The present matter will have to be referred to a larger Bench, with a view to rectify the foundational omission in Bachan Singh — of not explicitly declaring capital punishment as unconstitutional.

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Placing semicon diplomacy at the heart of India’s foreign policy

op-ed snap | International Relations | Mains Paper 2: Bilateral, Regional and Global Groupings and agreements involving India
Note4Students

From UPSC perspective, the following things are important :

Prelims level: Not much

Mains level: Paper 2- Semicon diplomacy

Context

The current decade presents a unique opportunity to India. . India must seize this opportunity and become an attractive alternative destination for semiconductor manufacturing.

Importance of semiconductors

  • Semiconductor chips are the lifeblood of the modern information age.
  • The semiconductor is the cornerstone of all electronic products.
  • They enable electronic products to compute and control actions that simplify our lives.
  • These semiconductor chips are the drivers for ICT development and one of the key reasons for the current flattening of the world

Global cooperation driven by semiconductors

  • The manufacturing cycle of a semiconductor chip from sand to a finished product, sees it change hands approximately 70 times across international borders.
  • Concentrated in few geographies: The semiconductor manufacturing capacities are concentrated in a few geographies.
  • Nearly all leading edge (sub 10nm) semiconductor manufacturing capacity is limited to Taiwan and South Korea, with nearly 92 per cent located in the former.
  • Further, 75 per cent of the semiconductor manufacturing capacity is concentrated in East Asia and China.

Opportunity for India

  • Companies are looking to diversify their supply chain and for alternatives to their bases in China.
  • The chip shortages due to Covid-19 have hit automakers with a revenue loss of $110 bn in 2021.
  • The Russia-Ukraine conflict and its implications for raw material supplies for the semiconductor value chain has also poised chipmakers to invest in strengthening the semicon supply chain.
  • India must seize this opportunity and become an attractive alternative destination for semiconductor manufacturing.
  • The way ahead is conceptualising a semicon diplomacy action plan.
  • Placing semicon diplomacy at the heart of India’s foreign policy is essential both strategically and economically.
  • The multiplier effect on the economy: The establishment of the value chain for semiconductors would ensure a multiplier effect on the entire economy. 
  • National security implications: Semiconductors are used in critical infrastructures such as communication, power transmission etc., that have implications for national security. 
  • Reducing the BoP: Domestic production would be saving forex and reducing the balance of payments, especially vis a vis China.

Way forward: Leveraging Semicon diplomacy

  • One of the ways of leveraging semicon diplomacy is increasing multilateral and bilateral cooperation.
  • Role of Quad: A key institution with immense potential in this regard is the Quad.
  • Australia, being rich in raw materials required for semiconductors, can be an important supplier to fill in India’s deficits.
  • The US and Japan can be leveraged for capacity building and their advanced semiconductor technology in logic and memory segments.
  • Pivot India’s Act East Policy: Considering that the semiconductor manufacturing and testing bases are heavily concentrated in East Asia, the Act East policy provides an opportunity to connect and strengthen ties with key players in the region.
  • Technological exchanges with ASEAN: Frequent technological exchanges between a regional bloc like ASEAN via tracks in forums like the East Asia Summit and the ASEAN regional forum will be beneficial.
  • Collective growth: Attaining self-sufficiency in semiconductor manufacturing can mean collective growth of the South Asian region.
  • India needs to harness its strengths, such as the strong presence of global EMS players, diaspora, world-class design ecosystem, demographic dividend, and use it as a pedestal for global partnerships and outreach.

Conclusion

India’s concept of self-reliance is not an individualistic endeavour but one that encourages growth and prosperity of all, in the spirit of Vasudhaiva Kutumbakam, meaning the entire world is one family. Similarly, we don’t have an option but to be self-reliant in semiconductors.

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Important Judgements In News

Mother Nature a ‘living being’ with legal entity: Madras HC

SC Judgements | Enviro & Biodiversity | Mains Paper 3: Conservation, Environmental Pollution & Degradation, Eia
Note4Students

From UPSC perspective, the following things are important :

Prelims level: Article 21

Mains level: Nature as a living entity

Holding that it is the right time to confer juristic status to ‘Mother Nature’, Justice S. Srimathy of the Madurai Bench of Madras High Court invoked the ‘parens patriae jurisdiction’, and declared ‘Mother Nature’ as a ‘living being’ having the status of a legal entity.

What is the news?

  • The Madras HC observed that ‘Mother Nature’ was accorded the rights akin to fundamental rights, legal rights, constitutional rights for its survival, safety, sustenance and resurgence in order to maintain its status and also to promote its health and well-being.

Legal rights for nature: A backgrounder

  • The movement for legal personhood for the environment and animals began in the 1970s.
  • This concept was articulated by Christopher D. Stone in his thesis, Should Trees Have Standing.
  • In this compelling piece, the author makes an argument for the environment to have independent legal rights, much like what was granted by the judgment of the Uttarakhand High Court in 2017.
  • He highlights how the theory of rights has developed over the years and that many inanimate objects have both rights and legal duties. They can sue and be sued.

What is the case for Madras HC’s personification of nature?

  • The Madras HC has made a personification of nature that focuses on the life-giving and nurturing aspects of nature by embodying it, in the form of the mother.
  • It observed that the court is hereby declaring ‘Mother Nature’ a ‘living being’ having the status of a legal person with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve it.
  • The State and Central governments are directed to protect ‘Mother Nature’ and take appropriate steps in this regard in all possible ways.

A different course: Ecological Jurisprudence

  • The onset of climate change and the potential mass extinction of species is accompanied by the gradual closing window of opportunity to take meaningful action.
  • Activists around the world are calling for anthropocentric legal and governance systems to be replaced with ecocentric ones.
  • The last 15 years have seen a dramatic increase in the number of laws based on ecological jurisprudence.
  • Ecological jurisprudence is a philosophy that sees nature not as a set of objects to be exploited but as a community of subjects (humans and non-humans) who are connected through interdependent, reciprocal relationships.

India’s typical case

  • In 2017, the Uttarakhand HC ruled (in two separate orders) that the Ganga, the Yamuna, their tributaries, and the glaciers and catchments feeding these rivers in Uttarakhand had rights as a “juristic/legal person/living entity”.
  • In 2018, the same HC ruled that the entire animal kingdom had rights similar to that of a living person (Narayan Dutt Bhatt vs Union of India).
  • In March 2020, the Punjab and Haryana High Court passed an order declaring the Sukhna Lake in Chandigarh city a living entity, with rights equivalent to that of a person.

Beyond Rights

  • Law is a modern human construct. It not only talks in the language of rights and duties that only humans understand but also operationalizes them in a way that can further entrench human-centeredness.
  • In most cases where nature’s rights are recognized in law, they have done so by extending to it the concept of “personhood” in other words, akin to humans and, therefore, having human rights.
  • Hence, any such movement on recognizing the rights of the rest of nature must challenge the fundamental forms of injustices, including capitalism, stateism, anthropocentrism and patriarchy.

Significance of such status

  • These rights-based laws granting legal personhood for nature aim to shift the legal status of the natural world from being human property to living entities in their own right and subjects of law.
  • This guarantees their right to exist, thrive, evolve and maintain their natural cycles.
  • These rights are not conferred by humans; it is a recognition that these rights have always existed.
  • It lays upon humans the duty to act as guardians for the more-than-human world.

Issues of implementation

  • Assuming that these rights are recognised, nature or any of its entity cannot represent itself in a court of law.
  • Moreover there is the issue of custodianship.

What would account for violations?

  • The Uttarakhand court order did not mention what amounted to violation of rights of rivers.
  • In order to be able to truly exercise the rights and implement appropriate redressal, there is a need for a comprehensive definition of the actions that amount to “violation of the rights”.
  • Say, the violation of the rights of rivers may be defined as “any obstruction or impediment that disables the entity from performing its essential ecological functions”.

Restitution and compensation

  • The New Zealand law has an extensive section lending itself to restitutive, restorative and compensatory action.
  • It acknowledged the government’s decisions and actions for more than a century that resulted in the violation of the health of the Whanganui and the rights, culture and well-being of the indigenous people living along the river.
  • Several specific examples were given, including the dismantling of traditional structures for fishing and river use, a hydroelectric project and mining.
  • Such an acknowledgment is a necessary first step towards seeking appropriate restitutive and compensatory measures.

Another question: Bioregional Governance

  • Recognizing river ecosystems or other entities of nature as having rights offers the possibility of managing and governing habitats based on the ecological realities of the region.
  • It brings out the bizarre fact that the human-drawn nation state, and political lines on maps in various parts of the world have created conflict situations or disrupted ancient cultural and ecological flows and relations.
  • We need to begin reimagining governance from a bioregional governance point of view.
  • This would also mean bridging the gap between the customary ways of decision making and the current legal frameworks.
  • There is a need for more imaginative lawyers, activists and judges to help move towards an eco-centric and diverse legal framework.

Way forward

  • There is a need for a comprehensive system to implement and protect their rights.
  • The rights can be safeguarded using the principles of custodianship.
  • The Uttarakhand High Court order named several government functionaries and a couple of independent lawyers as “parents”.
  • An alternative solution is that custodianship or guardianship be given to a body of local communities associated with the river.
  • These communities have traditional or customary rights of the river such as fisherfolk, farmers along the riverbank, and people directly engaged in river-related services.

 

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Civil Services Reforms

What are the rules for resignation and reinstatement of an IAS officer?

| Governance | Mains Paper 2: Civil Service
Note4Students

From UPSC perspective, the following things are important :

Prelims level: Civil Services

Mains level: Resignation and reinstatement of an IAS officer

A decorated Indian Administrative Service (IAS) officer and UPSC CSE topper from 2010, who resigned from the service in protest against the “unabated” killings in Kashmir in 2019, has been reinstated.

What rules apply when an IAS officer chooses to resign?

  • A resignation is a formal intimation in writing by an officer of his/her intention or a proposal to leave the IAS, either immediately or at a specified date in the future.
  • Guidelines of the Department of Personnel, the cadre controlling department for the IAS, say that a resignation has to be clear and unconditional.
  • The resignation of an officer of any of the three All-India Services — IAS, the IPS and IFoS — is governed by Rules 5(1) and 5(1)(A) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958.
  • There are similar rules for resignation of officers belonging to the other central services as well.
  • Resignation from service is entirely different from accepting the government’s Voluntary Retirement Scheme (VRS).

To whom must the resignation of an IAS officer be submitted?

  • An officer serving in a cadre (state) must submit his/her resignation to the chief secretary of the state.
  • An officer who is on central deputation is required to submit his/her resignation to the secretary of the concerned Ministry or Department.
  • The Ministry/Department then forwards the officer’s resignation to the concerned state cadre, along with its comments or recommendations.

What happens after the resignation is submitted?

  • The state checks to see if any dues are outstanding against the officer, as well as the vigilance status of the officer or whether any cases of corruption etc. are pending against him/her.
  • In case there is such a case, the resignation is normally rejected.
  • Before forwarding the resignation to the central government, the concerned state is supposed to send information on the issues of dues and vigilance status, along with its recommendation.
  • The resignation of the officer is considered by the competent authority, i.e., the central government, only after the recommendation of the concerned cadre has been received.
  • The competent authorities are: Minister of State at the DoPT in respect of the IAS, the MHA in respect of the IPS, and the MoEFCC in respect of the Forest Service.
  • Being the minister in charge of the DoPT, the Prime Minister himself takes decisions currently in respect of the IAS.

Under what circumstances is a resignation accepted or rejected?

  • A circular issued by the DoPT on February 15, 1988 regarding resignation says that it is not in the interest of the government to retain an officer who is unwilling to serve.
  • The general rule, therefore, is that the resignation of an officer should be accepted — except in certain circumstances.
  • The references are made regarding the merit of the disciplinary case pending against the Government servant and whether it would be in the public interest to accept the resignation.
  • In some cases, resignations have been rejected because disciplinary cases were pending against officers.
  • In such cases, concurrence of the Central Vigilance Commission (CVC) is obtained.
  • The government also checks whether the concerned officer had executed any time-bond to serve the government.

Is an officer allowed to withdraw a resignation that has already been submitted?

  • Rule 5(1A)(i) of the amended DCRB Rules says the central government may permit an officer to withdraw his/her resignation “in the public interest”.
  • An amendment in the Rules in 2011 states the member is allowed to resume duty as a result of permission to withdraw the resignation is not more than 90 days”.
  • The request for withdrawal of resignation shall NOT be accepted where a member of the Service resigns to be associated with any active politics/ political parties.

And under what circumstances is the withdrawal of an officer’s resignation accepted?

  • The 2011 guidelines say that if a resigned officer resignation sends an intimation in writing withdrawing it before its acceptance by the competent authority, the resignation will be deemed to have been automatically withdrawn.
  • The officer under discussion had resigned on January 9, 2019, but his resignation was not processed.

 

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Climate Change Impact on India and World – International Reports, Key Observations, etc.

What are Heatwaves?

| Enviro & Biodiversity | Mains Paper 1: Climatic Change

India is gripped in the wrath of a long spell of heatwaves that too in the early month of April.

What is a Heatwave and when is it declared?

  • Heatwaves occur over India between March and June.
  • IMD declares a heatwave event when the maximum (day) temperature for a location in the plains crosses 40 degrees Celsius.
  • Over the hills, the threshold temperature is 30 degrees Celsius.

How are they formed?

  • Heatwaves form when high pressure aloft (3,000–7,600 metres) strengthens and remains over a region for several days up to several weeks.
  • This is common in summer (in both Northern and Southern Hemispheres) as the jet stream ‘follows the sun’.
  • On the equator side of the jet stream, in the upper layers of the atmosphere, is the high pressure area.
  • Summertime weather patterns are generally slower to change than in winter. As a result, this upper level high pressure also moves slowly.
  • Under high pressure, the air subsides (sinks) toward the surface, warming and drying adiabatically, inhibiting convection and preventing the formation of clouds.
  • Reduction of clouds increases shortwave radiation reaching the surface.
  • A low pressure at the surface leads to surface wind from lower latitudes that brings warm air, enhancing the warming.
  • Alternatively, the surface winds could blow from the hot continental interior towards the coastal zone, leading to heat waves.

Following criteria are used to declare heatwave:

To declare heatwave, the below criteria should be met at least in 2 stations in a Meteorological subdivision for at least two consecutive days and it will be declared on the second day.

  1. a) Based on Departure from Normal
  • Heat Wave: Departure from normal is 4.5°C to 6.4°C
  • Severe Heat Wave: Departure from normal is >6.4°C
  1. b) Based on Actual Maximum Temperature (for plains only)
  • Heat Wave: When actual maximum temperature ≥ 45°C
  • Severe Heat Wave: When actual maximum temperature ≥47°C

How long can a heatwave spell last?

  • A heatwave spell generally lasts for a minimum of four days. On some occasions, it can extend up to seven or ten days.
  • The longest recorded heatwave spell, in recent years, was between 18 and 31 May 2015.

Impact of Heat Waves:

Heat Strokes: The very high temperatures or humid conditions pose an elevated risk of heat stroke or heat exhaustion.

Older people and people with chronic illness such as heart disease, respiratory disease, and diabetes are more susceptible to heatstroke, as the body’s ability to regulate heat deteriorates with age.

Increased Healthcare Costs: Effects from extreme heat are also associated with increased hospitalisations and emergency room visits, increased deaths from cardio-respiratory and other diseases, mental health issues, adverse pregnancy and birth outcomes, etc.

Lessens Workers’ Productivity: Extreme heat also lessens worker productivity, especially among the more than 1 billion workers who are exposed to high heat on a regular basis. These workers often report reduced work output due to heat stress.

Risk of Wildfires: The heat domes act as fuel to wildfires, which destroys a lot of land area every year in countries like the US.

Prevents Cloud Formation: The condition also prevents clouds from forming, allowing for more radiation from the sun to hit the ground.

Effect on Vegetation: The trapping of heat can also damage crops, dry out vegetation and result in droughts.

Increased Energy Demands: The sweltering heat wave also leads to rise in energy demand, especially electricity, leading to pushing up rates.

Power Related Issues: Heat waves are often high mortality disasters.

Avoiding heat-related disasters depends on the resilience of the electrical grid, which can fail if electricity demand due to air conditioning use exceeds supply.

As a result, there is the double risk of infrastructure failure and health impacts.

  • Initiatives Taken:
    • Global:
      • Global forums dealing with climate change issues—such as the World Health Organization, World Economic Forum, First Global Forum on Heat and Health, and the Global Forum for Environment-OECD—also focus on heat waves by investing in research on health risks of extreme heat, climate and weather information, advice on surviving heat waves, partnerships and capacity building, and communications and outreach.
    • Indian:
      • The National Disaster Management Authority (NDMA) has issued guidelines on dealing with heatwaves.
        • However, India does not recognise heatwaves as a disasterunder its Disaster Management Act (2005).

Way Forward

  • Adopting A More Sensitive Approach: The impact of such excessive heat needs to be understood from the point of view of common people — daily labourers; farmers; traders; fishermen etc.
    • Beyond numbers and graphs that capture the impact of the climate crisis, the human experience of living in oppressive heat needs to be understood by policymakers and measures should be taken accordingly.
  • Cooling Shelters: The government should come out with a policy to deal with the suffering and disability caused by heat extremes in different parts of the country.
    • Water kiosks, staggered outdoor work hours, cool roofs for buildings and homes are certain things that should be put in place immediately.
    • A number of emergency cooling shelters can be opened so that people without domestic air conditioning units can escape the heat.
      • Portable air-conditioning units, along with fans and even ice are also useful.
  • Passive Cooling to Reduce Urban Heat Islands: Passive cooling technology, a widely-used strategy to create naturally ventilated buildings, can be a vital alternative to address the urban heat island for residential and commercial buildings.
    • The IPCC report cites ancient Indian building designs that have used this technology, which could be adapted to modern facilities in the context of global warming.
  • Action Plans Similar to Ahmedabad: As per the IPCC Report, Ahmedabad has shown the way to combat heat extremes by heat-proofing buildings.
    • After the heat action plan was implemented in 2013 in Ahmedabad, heat-related mortality reduced by 30% to 40% over the years. Similar plans like that of Ahmedabad can be implemented in vulnerable regions.
  • Replacing Dark Roofs: A big reason that cities are so much hotter than rural areas is that they are covered by dark roofs, roads and parking lots that absorb and retain heat.
    • One of the long term solutions can be replacing the dark surfaces with lighter and more reflective materials; it will result in a comparatively cooler environment.

 

 

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