📰 Railways to map festivals along the tracks to prevent fatalities
Advisory to be issued to loco pilots on speed restrictions, other safety aspects
•More than two years after a train fatally mowed down 61 persons participating in ‘Dussehra’ near Amritsar, the Ministry of Railways has decided to map local festivals celebrated near railway tracks across the country and issue advisory to loco pilots on speed restrictions and other safety aspects.
•In a note to General Managers of Zonal Railways, the Railway Board said there were several local festivals celebrated in India during which the devotees/people gathered near railway premises and crossed the track in groups as part of the event. Such occasions had led to unusual incidents resulting in casualty in the past.
•All Divisional Railway Managers were advised to prepare a list of local festivals having the possibility of gathering in and around railway tracks in all States. “The loco pilot of all trains passing through such locations on festival day should be suitably advised,” the note issued early this month said.
•There have been a few incidents of fatal accidents on railway tracks during the festival season. In one of the major such accidents in recent years, as many as 61 people, including women and children, were killed and dozens of others injured when a crowd that was watching ‘Ravana’ effigy being burnt as part of Dussehra celebrations near Amritsar was run over by a train.
Information lag
•In a related development, Principal Executive Director (Safety) Devendra Singh expressed concern that accidents and unusual incidents were being reported “very late or not reported” at all to the Railway Board.
•“It is being viewed seriously by the Board and the Apex Office of the Ministry [of Railways]. The information about the last few incidents of unusual incidents/accidents has come to Board through the media and not from the Division and Zonal Railways,” said Mr. Singh. He urged the authorities concerned to ensure information flow about accidents or unusual incidents be prompt before it got flashed by the media.
Eudiscopus denticulus was recorded from the Lailad area near the Nongkhyllem Wildlife Sanctuary, about 1,000 km west of its nearest known habitat in Myanmar
•Meghalaya has yielded India’s first bamboo-dwelling bat with sticky disks, taking the species count of the flying mammal in the country to 130.
•The disk-footed bat (Eudiscopus denticulus) was recorded in the north-eastern State’s Lailad area near the Nongkhyllem Wildlife Sanctuary, about 1,000 km west of its nearest known habitat in Myanmar.
•A team of scientists from the Zoological Survey of India (ZSI) and a few European natural history museums stumbled upon this “very specialised” small bat with “disk-like pads in the thumb and bright orange colouration” while sampling in a bamboo patch almost a year ago.
•The finding by ZSI’s Uttam Saikia, Rohit Chakravarty, Vishwanath D. Hegde and Asem Bipin Meetei has been published in the latest edition of Revue Suisse de Zoologie, a Swiss journal.
•The European authors of this report are Sergei Kruskop from the Zoological Museum of Moscow State University, Gabor Csorba of the Hungarian Natural History Museum, and Manuel Ruedi of Switzerland’s Muséum d'Histoire Naturelle.
•“There are a couple of other bamboo-dwelling bats in India. But the extent of adaptation for bamboo habitat in this species is not seen in the others,” one of the ZSI scientists involved in the study said, declining to be quoted.
•The newly-recorded bat was presumed to be a bamboo-dwelling species, but its flattened skull and adhesive pads helped in identifying it as the disk-footed known from specific localities in southern China, Vietnam, Thailand and Myanmar.
•Dr. Saikia and his colleagues found that the flattened skull and sticky pads enabled the bats to roost inside cramped spaces, clinging to smooth surfaces such as bamboo internodes. The disk-footed bat was also found to be genetically very different from all other known bats bearing disk-like pads.
•Scientists analysed the very high frequency echolocation calls of the disk-footed bat, which was suitable for orientation in a cluttered environment such as inside bamboo groves.
•The disk-footed bat has raised Meghalaya’s bat count to 66, the most for any State in India. It has also helped add a genus and species to the bat fauna of India, the ZSI scientists said.
📰 Normal is good: On IMD monsoon forecast
The IMD must continue to widen its focus to aid business and services sectors
•The India Meteorological Department (IMD) has forecast a ‘normal’ monsoon for this year. In the agency’s parlance, normal implies that the country will get 96% to 104% of the 88 cm that it gets from June-September. This quantity, called the Long Period Average (LPA), is a mean of monsoon rainfall from 1961-2010. The IMD, for over 20 years now, follows a two-stage monsoon forecast system. After the prognosis in April, it gives an updated estimate in late May or early June. This includes an estimate of how much rain is likely in: northwest India, northeast India, central India and southern peninsula. Numbers are also given for July and August, which see two-thirds of the monsoon rains and are the most important months for sowing. This year, there will be forecasts for June and September too, to be given in May and August, respectively. Historically, predicting rain for June and September is challenging as it corresponds to the monsoon’s entry and exit. There will also be forecasts for what is called the monsoon core zone, which represents most of the rainfed agriculture region in the country. All of these updates are an extension of the IMD’s increasing reliance on dynamical monsoon models. Unlike the traditional statistical models, which are based on a fixed set of meteorological variables that have historically been correlated with variations in monsoon rainfall, the dynamical models generate forecasts based on evolving weather patterns. The IMD has been testing such models for many years but it is only in the last few years that it is finding use for practical weather forecasts.
•A ‘normal’ monsoon forecast this year is primarily predicated on ‘neutral’ surface temperatures in the Central Equatorial Pacific. In 2019 and 2020, the IMD forecast normal rains but India ended up with 110% and 109% of the LPA. This year, a warming El Niño is unlikely, and another ocean parameter closer home, the Indian Ocean Dipole, too is expected to be unfavourable for excess rains and so the IMD seems more confident that its calculations are not going to be as wrong. However, the models already show a good chance of ‘above normal’ rain in central and southern India. While forecasts are a critical aspect of India’s disaster preparedness, there should also be more focus on incorporating these forecasts down to municipal and block-level planning. The monsoon forecasts were primarily evolved to assist with agriculture and it is only now getting more urban-focused because of the natural disasters that accompany even ‘normal’ monsoons. Several business and service sector industries need weather products and in terms of science and infrastructure, few have the resources the IMD has. The IMD must continue to aid on all these fronts.
📰 The Election Commission of India cannot be a super government
There is still some confusion about the extent and nature of the powers that are available to the Election Commission
•Elections bring the Election Commission of India (ECI) into sharp focus as this constitutional body superintends, directs and controls the conduct of elections. It is the constitutional duty of the ECI to ensure that the elections held are free and fair.
•It is an interesting aspect of the ECI’s history that before T.N. Seshan came on the scene as the Chief Election Commissioner, no one in the country ever knew or felt that the ECI had any powers. Seshan discovered the ECI’s powers hidden in Article 324 of the Constitution which was then used to discipline recalcitrant political parties which had till then believed that it was their birth right to rig elections. Thus there was a very high level of confidence in the minds of Indian citizens about the ECI’s role restoring the purity of the elected legislative bodies in the country.
•It became rather easier for Seshan to locate the powers of the ECI after the Supreme Court held in Mohinder Singh Gill vs Chief Election Commissioner (AIR 1978 SC 851) that Article 324 contains plenary powers to ensure free and fair elections and these are vested in the ECI which can take all necessary steps to achieve this constitutional object. All subsequent decisions of the Supreme Court reaffirmed Gill’s decision and thus the ECI was fortified by these court decisions in taking tough measures.
The model code
•The model code of conduct issued by the ECI is a set of guidelines meant for political parties, candidates and governments to adhere to during an election. This code is based on consensus among political parties. Its origin can be traced to a code of conduct for political parties prepared by the Kerala government in 1960 for the Assembly elections. It was adopted and refined and enlarged by the ECI in later years, and was enforced strictly from 1991 onwards.
•There is absolutely no doubt that elections need to be properly and effectively regulated. The Constitution has clothed the ECI with enough powers to do that. Thus, the code has been issued in exercise of its powers under Article 324. Besides the code, the ECI issues from time to time directions, instructions and clarifications on a host of issues which crop up in the course of an election. The model code is observed by all stakeholders for fear of action by the ECI. However, there exists a considerable amount of confusion about the extent and nature of the powers which are available to the ECI in enforcing the code as well as its other decisions in relation to an election.
•Since it is a code of conduct framed on the basis of a consensus among political parties, it has not been given any legal backing. Although a committee of Parliament recommended that the code should be made a part of the Representation of the People Act 1951, the ECI did not agree to it on the ground that once it becomes a part of law, all matters connected with the enforcement of the code will be taken to court, which would delay elections.
Unresolved question
•The position taken by the ECI is sound from a practical point of view. But then the question about the enforceability of the code remains unresolved. Paragraph 16A of the Election Symbols (Reservation and Allotment) Order, 1968 says that the commission may suspend or withdraw recognition of a recognised political party if it refuses to observe the model code of conduct.
•But it is doubtful whether this provision is legally sustainable. The reason is that withdrawal of the recognition of a party recognised under these orders seriously effects the functioning of political parties. When the code is legally not enforceable, how can the ECI resort to a punitive action such as withdrawal of recognition?
•There are two crucial issues which need to be examined in the context of the model code and the exercise of powers by the ECI under Article 324.
Transfer of officials
•One issue relates to the abrupt transfer of senior officials working under State governments by an order of the commission. It may be that the observers of the ECI report to it about the conduct of certain officials of the States where elections are to be held. The ECI apparently acts on such reports and orders the transfer on the assumption that the presence of those officials will adversely affect the free and fair election in that State. Transfer of an official is within the exclusive jurisdiction of the government. It is actually not clear whether the ECI can transfer a State government official in exercise of the general powers under Article 324 or under the model code.
•The code does not say what the ECI can do; it contains only guidelines for the candidates, political parties and the governments. Further, Article 324 does not confer untrammelled powers on the ECI to do anything in connection with the elections. If transfer of officials is a power which the ECI can exercise without the concurrence of the State governments, the whole State administration could come to a grinding halt. The ECI may transfer even the Chief Secretary or the head of the police force in the State abruptly. In Mohinder Singh Gill’s case (supra), the Court had made it abundantly clear that the ECI can draw power from Article 324 only when no law exists which governs a particular matter. It means that the ECI is bound to act in accordance with the law in force. Transfer of officials, etc is governed by rules made under Article 309 of the Constitution which cannot be bypassed by the ECI under the purported exercise of power conferred by Article 324. Further, to assume that a police officer or a civil servant will be able to swing the election in favour of the ruling party is extremely unrealistic and naive. It reflects in a way the ECI’s lack of confidence in the efficacy of politicians’ campaigns.
Administrative moves
•Another issue relates to the ECI’s intervention in the administrative decisions of a State government or even the union government. According to the model code, Ministers cannot announce any financial grants in any form, make any promise of construction of roads, provision of drinking water facilities, etc or make any ad hoc appointments in the government. departments or public undertakings. These are the core guidelines relating to the government. But in reality, no government is allowed by the ECI to take any action, administrative or otherwise, if the ECI believes that such actions or decisions will affect free and fair elections.
•A recent decision of the ECI to stop the Government of Kerala from continuing to supply kits containing rice, pulses, cooking oil, etc is a case in point. The State government has been distributing such free kits for nearly a year to meet the situation arising out of the pandemic, which has helped many a household. The decision to stop the kit distribution was reportedly on a complaint from the Leader of the Opposition in the Assembly. The question is whether the ECI could have taken such a decision either under the model code or Article 324. The model code does not provide any clue. As regards the use of Article 324, the issue boils down to whether distribution of food items to those in need in a pandemic will affect free and fair elections.
•The Supreme Court had in S. Subramaniam Balaji vs Govt. of T. Nadu & Ors (2013) held that the distribution of colour TVs, computers, cycles, goats, cows, etc, done or promised by the government is in the nature of welfare measures and is in accordance with the directive principles of state policy, and therefore it is permissible during an election. If colour TVs, computers, etc can be promised or distributed during an election and it does not influence the free choice of the people, how can the distribution of essential food articles which are used to stave off starvation be an electoral malpractice? Further, Section 123 (2)(b) of the Representation of the People Act, 1951 says that declaration of a public policy or the exercise of a legal right will not be regarded as interfering with the free exercise of the electoral right.
Insightful words
•There is no doubt that the ECI, through the conduct of free and fair elections in an extremely complex country, has restored the purity of the legislative bodies. However, no constitutional body is vested with unguided and absolute powers. Neither citizens nor the ECI is permitted to assume that the ECI has unlimited and arbitrary powers. It would be useful to remember the insightful words of Justice S.M. Fazalali, in A.C. Jose vs Sivan Pillai (1984): “if the [Election] Commission is armed with such unlimited and arbitrary powers and if it ever happens that the persons manning the commission shares or is wedded to a particular ideology, he could by giving odd directions cause a political havoc or bring about a constitutional crisis, setting at naught the integrity and independence of the electoral process so important and indispensable to the democratic system.”
📰 An obituary for the IP Appellate Board
Its tenure was a missed opportunity to develop the home-grown jurisprudence on patent law
•The demise of the Intellectual Property Appellate Board (IPAB), India’s specialist tribunal for determining disputes relating to intellectual property (IP) rights, is symbolic of its tenuous life. For an organisation that was created in haste and managed in haste, the end came about, unsurprisingly, in haste.
•The patent system is notorious for its bipolar nature. Ever since its inception, public opinion has been divided about the usefulness of the system. There have been regular calls for its abolition. The lack of unanimity about the system here was seen in the way Indian parliamentarians deliberated on patent bills in the past. Most of the significant amendments to the Patents Act since 1970 came through, not by way of an Act passed by Parliament, but through an ordinance. Just as we pushed through amendments to the Patents Act through ordinances in 1994 and 2005, we have now accorded the IPAB a similar burial. On April 4, the President of India signed the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021, shutting down the IPAB and many other tribunals for good.
Troubled life
•Ever since its creation, the IPAB has been treated like an unwanted child. Perennially understaffed and underfunded, it always looked like a jugaad fix for the problems in the innovation system. Established under the Trade Marks Act of 1999, its jurisdiction was later extended to hear patent cases after the Patents (Amendment) Act of 2002. Historically, appeals from the Intellectual Property Office (IPO), rectification and revocation applications were heard by the various High Courts. However, the Patents (Amendment) Act of 2002 divested these powers from the High Courts and extended it to the IPAB. Though the patents side of the IPAB existed in theory since 2002, the Central government notified its functioning only in April 2007 after a rebuke from the Madras High Court. The court was then hearing an appeal from the IPO regarding Novartis’ Glivec patent application which ought to have been heard by the IPAB. After the notification, the High Court transferred Novartis’ petition and subsequently all other pending patent cases to the IPAB.
•Since its inception, the institution has been involved in controversies. Even though the IPAB has not been performing its adjudicatory function on the patent side regularly due to administrative reasons, it certainly has been the subject matter of judicial review before the various High Courts. These cases include a challenge to the constitutionality of the IPAB, petitions seeking filling up of vacancies before the High Court in Delhi and Chennai, and even a petition to the Supreme Court for extension of the term of the chairperson.
•After remaining headless for almost two years, in January 2018, the IPAB was given a head. The then chairperson of the Appellate Tribunal for Forfeited Property was given additional charge. However, there was a substantial delay in the start of hearing of patent cases due to a technical reason. The appointment of the technical member for patents, with whom the chairperson sits while deciding cases on patents, who brings the much-needed technical expertise that patent cases usually demand, was delayed. The appointment of the technical member finally came last year after the government was sued by the Indian Drug Manufacturers’ Association.
•IPAB’s end was foreseen by the leaders who ran it. One of the former chairpersons had publicly raised concerns regarding the judicial and institutional independence of the IPAB, and called for closing it. Not only was the IPAB understaffed, with its administrative staff often being on deputation, it was also underpowered, at times quite literally. The tribunal had to bear the brunt of the summer power cuts in Chennai. Imagine the highest authority on protecting technology and innovation working through the scorching Chennai summer during power cuts without any viable backup. One lasting memory of the IPAB will be the image of a dimly lit court hall with the presiding judges poring over patent specifications covering high technology using two emergency lights and the counsel arguing the case using the flashlight on his phone. For those who had the misfortune of walking into the tribunal in Guna Complex in Chennai, where the IPAB was housed during those punishing power cuts, this image would have been a teaser of what was to follow.
•The IPAB’s jurisdiction of cases was split between trademarks, patents, copyright, and geographical indication, where the predominant business pertained to trademarks. Thus, the workload of the IPAB was typically split between trademarks and patents with the former consuming much of the time. Not only did the IPAB juggle its time with the different forms of IP, but it also had sittings in five different cities, with just one chairperson who had to fly between them at times. The chairperson had to summon parties and papers to all these cities, which came at a substantial cost to the public.
•The patents bench of the IPAB would have probably taken longer to constitute had it not been for the limelight brought by the Novartis case. In any case, the disposal rate for patents at the IPAB did not justify its continuance. Patent disputes owing to their technological complexity were the IPAB’s predominant time-consuming business after trademarks. In our study of the first decade of operation of the patents bench, we saw a paltry disposal rate of about 20 patent cases a year. Nearly 70% of the patent cases filed were either pending at some stage or yet to be taken up for hearing. After the IPAB was set up, not more than 15 cases were transferred from all the High Courts to the IPAB. Going by this disposal rate, it would have taken another decade to dispose of the pending applications, leave alone the new ones. The irony was that tribunals were established with the primary aim of speedy disposal of cases by specialised experts.
•The functioning of the IPAB is critical for the innovation ecosystem. Every patent granted by the Patent Office is a potential subject matter in appeal before the IPAB. An unjustified patent grant at the Patent Office, by error or oversight, can only be corrected in appeal. While we know the number of cases filed and disposed, we will never know the number of unjustified patents that went unquestioned for lack of an effective appellate mechanism.
Missed opportunity
•India stands as a shining example for what it has done legislatively in patent law. Be it the retraction of product patents for pharmaceuticals and chemicals between 1970 and 2005, the anti-evergreening provisions or the robust compulsory licensing regime, it has offered the world a host of TRIPS-compliant flexibilities in its statute. But when it came to developing a jurisprudence around these provisions – case laws from the highest courts on how these provisions will be worked – it has failed. Barring a few bright spots, there has been a reluctance to extend the flexibilities in the Patents Act through judicial interpretation that expands the law. The tenure of the IPAB will be remembered as a missed opportunity to develop the home-grown jurisprudence on patent law that is much lacking in India.
📰 Implementing green contracts
How corporations can cut down emissions
•The increasing concerns about climate change once again point to the need for enhanced efforts towards achieving sustainable growth goals in India. While the massive levels of production, consumption and disposal of goods and services have their own set of benefits in a post-industrial society, they have also slowed down the replenishment cycle of limited resources.
•As both consumers and corporations reap the benefits of large-scale manufacturing and services, they must equally share the responsibilities relating to the loss of resources and reduce greenhouse gas emissions. While much has been discussed on the operational ways of cutting down carbon emissions, this article focuses on how Indian corporations can be a major character in the country’s story of sustainable growth. Some corporations contribute a fair share to building a clean and sustainable future. But here we discuss how they can contribute to cutting down emissions through the process of green contracting.
What are green contracts?
•‘Green contracts’ refer to commercial contracts which mandate that contracting parties cut down greenhouse gas emissions at different stages of delivery of goods/services, including design, manufacturing, transportation, operations and waste disposal, as applicable to the industry. The process of implementing a green contract may commence at the bidding stage itself, when various interested companies participate in the tender process. In such a scenario, a ‘green tender’ may prescribe necessary ‘green qualifications’, which can be considered when awarding the contract to a bidder. These green qualifications can range from using a pre-defined percentage of ‘green energy’ in service delivery to adequate on-site waste management, reducing carbon emissions by a certain level over period of time, etc. Once such a bidder is chosen, the contracting agreement between the parties can prescribe the ‘green obligations’ in detail, thus making the obligations binding and enforceable in the eyes of the law. It is this obligatory nature of green contracts which sets the tone for the parties to cut down emissions. This can be achieved by contractual clauses providing for the use of good quality and energy-efficient infrastructure for production of goods/services, efforts in day-to-day operations such as reducing noise, air and water pollution and ensuring eco-friendly means of transportation like bicycles on site, establishing and maintaining a sustainable waste management system, and so on.
Meeting obligations
•One effective way to make sure that the service providers adhere to these contractual obligations would be to provide for measurement criteria and audit of the performance of the contractor with regard to these obligations. An organisation may also choose to contractually highlight non-performance of such obligations as a ground of contractual breach, with penalty prescriptions. Another way to make sure that these obligations under the green contracts resonate far is to make sure that they flow down to all levels of the supply chain engaged in the delivery of goods and services.
•Naturally, the degree of effecting a green contract will depend on the type of contract and the industry to which it relates. However, in the absence of any mandatory rules in this respect, it is the confidence and consideration of India Inc. towards green contracting which can aid the attainment of sustainable growth goals. The service recipients can also themselves undertake thorough assessments on their current standing on greenhouse gas emissions, and initiate relevant processes to contribute their share in India’s green sustainable future.
•Having said that, it is but natural to bear in mind the economic efficiency in awarding and executing green contracts. The economic cost of executing green contracts may be greater than a normal brown contract, but global entities operating in a changing environment need to take into consideration the greater environment costs at stake.
