📰 India lacks solar waste handling policy
IRENA has estimated that global photovoltaic waste will touch 78 million tonnes by 2050
•While India ramps up its solar power installation, it does not yet have a firm policy on managing waste that results from used solar panels or from the manufacturing process.
•The International Renewable Energy Agency (IRENA) last December estimated that the global photovoltaic waste will touch 78 million tonnes by 2050, with India expected to be one of the top five photovoltaic-waste creators.
•India currently considers solar waste a part of electronic waste and does not account for it separately, according to a response to a question in the Rajya Sabha. However, said Minister for New and Renewable Energy (MNRE) R.K. Singh, a committee had been constituted under the chairmanship of the Ministry’s Secretary to propose an action plan to evolve a “circular economy” in solar panel, through reuse/recycling of waste generated. There was no commercial raw material recovery facility for solar e-waste operational in India, but a pilot facility for solar panel recycling and material recovery had been set up by a private company in Gummidipoondi, Chennai, Tamil Nadu.
Solar panel’s life
•India has set a target of producing 100 GW of solar energy by 2022. The cumulative capacity of grid-connected solar photovoltaic (PV) installations is around 40 GW and of the current capacity, about 35.6 GW, is generated from ground-mounted plants and 4.4 GW from rooftop solar. A gigawatt is a 1,000 megawatt.
•Solar panels have an estimated life of 25 years, and given that India’s solar manufacturing industry took off around 2010 most of the installed systems were new and early in their calendar life cycle and therefore unlikely to generate a large quantity of solar waste. That, however, is only partially accurate, according to the Council for Energy, Environment and Water, a Delhi based think-tank. End-of-life was only one of the possible waste streams for PV modules and there were several other stages where modules could get damaged and were discarded, especially during transportation and installation. Additionally, modules could develop defects during the plant operations and be discarded even before their scheduled life span.
Cumulative waste
•Despite its ambitious expansion plans, much of India’s solar PV manufacturing uses imported components with parts mostly sourced from China. India now has a manufacturing capacity of 3GW for solar cells and 15GW for modules and, in the Budget this month, had announced a basic customs duty of 40% on modules and 25% on solar cell imports from April 1.
•In the CEEW’s reckoning, PV modules had so far likely generated a cumulative waste of nearly 285,000 tonnes, as of FY21, from the early-life loss of the installed 40 GW grid-connected solar capacity. “Hence, it will be imprudent to ignore and delay the issue of PV waste management anymore,” say CEEW analysts Akanksha Tyagi and Neeraj Kuldeep, in a report.
There is an imbalance now which the Supreme Court of India needs to address by empowering High Courts again
•Nearly 150 years ago, A.V. Dicey, the foremost constitutional lawyer of his day, wrote, “The essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other”. Much has been written about the federal structure in relation to the legislature and the executive. We now examine the Indian judiciary and the need to strengthen the federal nature of our judiciary.
•India is a union of States. The Supreme Court of India has held that the federalist nature of our country is part and parcel of the basic structure of the Constitution.
Integrated system
•Federalism is a midpoint between unitarism which has a supreme centre, to which the States are subordinate, and confederalism wherein the States are supreme, and are merely coordinated by a weak centre. The idea which lies at the bottom of federalism is that each of the separate States should have approximately equal political rights and thereby be able to maintain their non-dependent (for want of a better word) characteristics within the larger union.
•An integral requirement of a federal state is that there be a robust federal judicial system which interprets this constitution, and therefore adjudicates upon the rights of the federal units and the central unit, and between the citizen and these units.
•The federal judicial system comprises the Supreme Court and the High Court in the sense that it is only these two courts which can adjudicate the above rights. Dr. B.R. Ambedkar stated in the Constituent Assembly: “The Indian Federation though a dual polity has no dual judiciary at all. The High Courts and the Supreme Court form one single integrated judiciary having jurisdiction and providing remedies in all cases arising under the constitutional law, the civil law or the criminal law.”
•The Supreme Court was created under the Constitution, and is a relatively new court. On the other hand, some of the High Courts in our country have been in existence since the 1860s (and some existed even before that, in their earlier avatars as supreme courts of the Presidencies).
An equality of power
•The Indian Constitution envisaged the equality of power of High Court judges and Supreme Court judges, with a High Court judge not being a subordinate of a Supreme Court judge. Famously, the Chief Justice of the Bombay High Court, Justice M.C. Chagla and the Chief Justice of the Madras High Court, Justice P.V. Rajamannar, when offered seats in the newly formed Supreme Court, rejected the offer, preferring to be Chief Justices of prestigious High Courts than being ordinary judges in a newly formed court.
•The Supreme Court has, on many occasions, reiterated the position that the Supreme Court is superior to the High Court only in the appellate sense. Therefore, the theoretical position has always been that High Court judges and Supreme Court judges are equals. A delicate balance is required to be maintained between the Supreme Court and the High Courts in order for the constitutional structure dreamt of by B.R. Ambedkar to work.
•This balance existed from Independence onwards, until the 1990s. Since then, however, it has been tilting in favour of the central court. The need for this balance was underscored during the Emergency, when the High Courts (a significant number, at least) stood out as beacons of freedom, even as the Supreme Court failed in this duty.
•In recent years, three specific trends have greatly eroded the standing of the High Court, leading to an imbalance in the federal structure of the judiciary. First, the Supreme Court (or rather, a section of its judges, called “the Collegium”) has the power to appoint judges and chief justices to the High Courts and the Supreme Court. This Collegium also has the power to transfer judges and chief justices from one High Court to another. Second, successive governments have passed laws that create parallel judicial systems of courts and tribunals which provide for direct appeals to the Supreme Court, bypassing the High Courts. Third, the Supreme Court has been liberal in entertaining cases pertaining to trifling matters.
A centralisation and effects
•This has inevitably led to the balance tipping in favour of a centralisation of the judiciary. The greater the degree of centralisation of the judiciary, the weaker the federal structure.
•In the United States, empirical research by the legal researcher, Ilya Somin, shows that the U.S. Supreme Court is far more likely to strike down a state statute as unconstitutional than a federal statute. This research leads to the conclusion that judicial review by a centralised judiciary tends toward unitarism (the opposite of federalism), and the author says, “Courts face much weaker constraints when they strike down state legislation, especially state laws that are disapproved of by national political majorities... The federal government and sympathetic state governments elsewhere in the country may even support such judicial intervention.” In Nigeria, a similar federal country, research has shown that the Supreme Court favours the jurisdiction of the central government over the State units, and this has manifested itself in recent litigations over mineral rights and subsoil rights, where the Supreme Court has favoured interpretations which support the rights of the centre over the States.
•The Supreme Court of India today, by playing the role of a collegium, effectively wields the power to appoint a person as a judge to a High Court or to transfer him or her to another High Court, or to appoint (or delay the appointment) of a sufficiently senior High Court judge as a chief justice or as a judge of the Supreme Court. The practical impact of this in the power dynamic between a High Court judge and a Supreme Court judge, leaves little to be said or imagined.
•Moving to the second factor, an aggressively interventionist Supreme Court leads many to approach it directly as a panacea for all ills befalling the nation. In 2018, some individuals from Delhi directly filed a petition in the Supreme Court to curtail Deepavali celebrations. The Court promptly entertained the writ petition and issued directions that Deepavali could be celebrated for only one or two hours in the evening. This led to an uproar because people in South India celebrate Deepavali in the morning. Earlier, in another example, the Supreme Court had spent days deciding the height of the dahi handi during Gokulashtami celebrations.
•We see the Supreme Court interfering in matters which are clearly of local importance, having no constitutional ramifications. The Court itself observed recently, “Frivolous matters are making the institution dysfunctional... These matters waste important time of the court, which could have been spent on serious matters, pan-India matters.”
•These are very wise words, but the reality is that the Supreme Court does entertain these frivolous matters.
•Every time the Supreme Court entertains an appeal against a High Court decision, it second guesses the High Court. It sends out the message to the litigant: ‘It does not matter that the High Court ruled against you, you can take one more chance with this appeal.’
•Every time the Supreme Court entertains a public interest litigation on some matter which could just as effectively have been dealt with by the High Court, what the litigant hears is: ‘You do not need to approach the High Court, you can directly file your claim here, and you will not only get your hearing, you will get publicity too.’
Parallel judicial hierarchies
•The third of the factors identified by us is the creation of parallel hierarchies of courts and tribunals, whether it be the Competition Commission, or the company law tribunals, or the consumer courts. In all these cases, the High Courts are bypassed. Laws have been drafted such that the High Court has no role to play and the Supreme Court directly acts as an appellate court.
•The effect of this can be easily imagined, whether it be the weakening of the authority of the High Courts or the possibility of a tendency towards subservience or apathy of the judges of the High Courts.
•Political scientist and historian Tocqueville writes that in the decades immediately preceding the French Revolution there was a gradual erosion in the powers of the nobles living in the rural parts of France, and a gradual aggrandisement of powers in the hands of the aristocracy in Paris. The conclusion that this very learned author arrives at is that all central units have a natural tendency to aggrandise power to themselves from the state units, believing that centralisation enables them to discharge their duties more effectively in relation to the entire state. But in reality, the weakening of the state units sets off a weakening of the entire body of the state, which gradually ossifies into irreversible decay.
•We conclude by hoping that the Supreme Court itself recognises the importance of self-abnegation and restores the federal balance by re-empowering the High Courts. This will be in the best interest of the nation.
📰 After the Budget’s ‘crypto signal’, India awaits reforms
It is high time that crypto made a splash in the country, and it needs to be carefully managed with systemic changes
•In the Union Budget speech, Finance Minister Nirmala Sitharaman announced a 30% flat tax rate levied on any gains made from the transfer of virtual assets including cryptocurrencies and Non-Fungible Tokens (NFTs).
•But first some background. Cryptocurrency (crypto) consists of a digital denomination designed to work as a medium of exchange through a distributed computer network (a blockchain) that is not reliant on any central authority such as a government or a bank for its upholding and maintenance. This announcement by the Finance Minister now leads to the assumption that crypto is legal in India.
Sign of optimism
•This prescient move amounts to effectively being a de facto affirmation of the role that cryptocurrency and related technologies could play in India’s financial-cum-economic system. Foreseeable are changes that would, down the road, legitimise and formally legalise the activities of crypto start-ups and enable them to access the necessary support system which might not have been available previously. Such a statement also heralds reforms aimed at removing ambiguity among the relevant stakeholders.
•It is high time that crypto made a splash in the country, but this splash must, as with all innovation, be carefully managed to prevent rushed creative destruction and systemic liabilities. While critics are right in observing that the 30% flat tax rate is a harsh rate, this is a premium and price well-worth paying in exchange for what is effectively a ruling-out of prospects for a total ban on crypto by the central government.
•Additionally, while the high tax rate would inevitably hamper the willingness of investors to convert cryptocurrencies into the national fiat, this may, in turn, open up more doors for technologically savvy and innovation-minded investors. The extremely high tax rate and the fact that the losses cannot be offset would invariably propel investors to turn to alternative means of storing and undertaking transactions in cryptocurrencies, without foregoing the significant losses involved as they “switch” back into the rupee. An inadvertent upside of this, then, is the prospective conversion and reallocation of crypto-funds from one form to another.
Will aid innovation
•Such transformations would involve DeFi (Decentralised Finance) activities such as staking, lending, and providing liquidity, among others. DeFi (or “decentralized finance”) is “an umbrella term for financial services on public blockchains. With DeFi, one can do most of the things that banks support — earn interest, borrow, lend, buy insurance, trade derivatives, trade assets, and more — but it is faster and does not require paperwork or a third party. As with crypto generally, DeFi is global, peer-to-peer (meaning directly between two people, and not routed through a centralised system), pseudonymous, and open to all”. The processes highlighted above would drive innovation in the field of Indian DeFi; they would go a long way in assisting the building up of our crypto-financial ecosystem in the long run.
•More generally, the adoption of crypto currencies and virtual assets would enable quicker and cheaper transactions compared to banks and new forms of wealth creation without centralised intermediaries — which are subject to accidental or intentional capture by vested interests. While crypto is yet to become completely mainstream, one can easily see that we are in the transition phase, as investors and innovators new to the crypto ecosystem dabble their feet to test the waters.
Potential concerns
•The community of small and medium-sized enterprises (SMEs) and lower-end high net-worth individuals — the very community that has the most to gain from decentralised finance — is going to find it most difficult to access the ecosystem given the substantial barriers posed by the tax rates. Unless radical reforms are undertaken to liberalise the system — through positive incentives and infrastructural installation — it is unlikely that the community we speak of here is likely to reap the gains from the system (in light of the burdens they would confront). Participation would remain unlikely for at least a few more years to come.
•Additionally, when it comes to India’s crypto policy at large, there is a fundamental lack of clarity in aspects other than taxation. While the finer details can only be seen once the Cryptocurrency Bill is passed, there appears to be a push to treat crypto as purely an asset class than a currency. The consolation offered by the Government in the form of the Reserve Bank of India’s CBDC, or Central Bank Digital Currency, will definitely help in pushing for the adoption of digital currencies, but, equally, defeats the fundamental purpose of cryptocurrency, which is decentralisation. As a flourishing and dynamic democracy, India deserves an empowered and mobilised middle class of consumers, investors, and crypto-minded citizens who can imbue their civic engagement and economic activities with cryptocurrency in contributing toward a brighter and better political future for all in India.
Reforms are an answer
•The solution rests with systemic, real reforms. The obvious candidate for such reforms would be to reduce tax rates in the future, though this must be weighed against considerations concerning government revenue and the need to curb speculative bubbles surfacing in relation to the currency. While these are by no means short-term risks, they could pose medium- to longer-term threats, though arguably, the solution here lies not with taxing crypto altogether, but in introducing more rigorous regulations where appropriate without which crypto has the potential to become a source of illegitimate political funding or black money.
Tapping other insights
•The second reform constitutes the incorporation of insights from seasoned partners from international communities; the key should rest with engaging these individuals for their insights and advice on the best practices associated with cryptocurrency policymaking. How can we push forward transformations to financial structures without rocking the socio-political boat? How can we navigate the potential security quagmires and challenges presented by crypto? How can we ensure that our infrastructure remains intact and capable of addressing the needs and the demands connected with crypto consumers? These are questions that only a synthesis of domestic and foreign talents (through organic dialogue and collaboration) could answer.
•Systemic reforms are by no means easy, but they are critical as an amplifier of the successes that India has already accrued in the field, and as an accelerator of India’s advancement in the sphere of cryptofinance and blockchain social policymaking. Here is to a better and brighter future for all the parties involved.
•Salem Dharanidharan is an executive coordinator at the Dravidian Professionals Forum and co-founder of the Oxford Policy Advisory Group.
