📰 Supreme Court tears into practice of ‘sealed cover jurisprudence’
‘Please do not give sealed cover reports in this court’, says CJI
•Two separate Benches of the Supreme Court on Tuesday tore into the "sealed cover jurisprudence" practised by the government in courts.
•The court was critical about how the government and its agencies file reports in sealed envelopes directly in court without sharing the contents with the opposite party. This is usually done on the ground that the contents are highly sensitive in nature, and may injure even national security or "public order". Another reason given by State agencies, mostly in money laundering cases, is disclosure would affect ongoing investigation.
•Being kept in the dark about the material contained in a sealed cover report, the petitioners are crippled in mounting a defence, not knowing what they are supposed to defend against. At times, their cases, mostly involving fundamental rights like personal liberty, are dismissed on the basis of the secret contents ensconced in the sealed covers.
Will not accept it: CJI
•"Please do not give sealed cover reports in this court. We will not accept it," Chief Justice of India (CJI) N.V. Ramana admonished a counsel in a criminal appeal filed by a man against the Bihar government.
•The CJI's remarks were recounted by senior advocate Dushyant Dave to a Bench led by Justice D.Y. Chandrachud later in the day as soon as the hearing began on the government ban of Media One channel.
•"I am very averse to what is called the 'sealed cover jurisprudence'," Justice Chandrachud reacted.
•The Centre, in the Media One case, had come with its files to hand over to the court in a sealed cover. The court asked why the government could not disclose the files to the channel. It kept the issue open for examination.
•Justice Chandrachud said the court would like to examine the larger issue of 'sealed cover jurisprudence', especially in the background of bans on media houses like Media One, and asked senior lawyers like Rakesh Dwivedi and Additional Solicitor Generals S.V. Raju and K.M. Nataraj to assist it in the endeavour.
‘Small exception’ of cases
•Justice Chandrachud said there were only a "small exception" of cases in which the court, for the benefit of the parties, do not want them to see the government files.
•"Like in a case of child sexual abuse," Justice Chandrachud pointed out. He narrated how, some time ago, Attorney General K.K. Venugopal dealt with sensitive government records concerning cross-border national security in a case before the Supreme Court.
•Instead of putting them in a sealed cover, Mr. Venugopal had sent his junior with the records to the office of the opposite counsel, for him to go through them so that the latter could better assist the court.
•"The Attorney made it clear that he did not like the files to be made available in the public realm, but he said there is nothing secret from the petitioner's counsel, who could see the records for himself and assist the court," Justice Chandrachud narrated.
•Senior advocate Huzefa Ahmadi referred to the apex court's judgment in the Anuradha Bhasin case that dealt with security measures in Jammu and Kashmir following the abrogation of Article 370.
•"The court said that any portion perceived sensitive could be redacted but the substance of what is against you, be it a question of national security or not, should be disclosed to the opposite party so that they can get an opportunity to defend," Mr. Ahmadi submitted.
The accessibility guidelines for higher education institutions and universities require some modifications
•The Rights of Persons with Disabilities Act, 2016 guarantees to every disabled person a large bouquet of rights and entitlements. But the reality that disabled persons confront in their everyday lives is far removed from the law’s progressive vision. The Supreme Court judgment inAvni Prakash v. National Testing Agency(2021) is emblematic of this gap. As the appellant’s answer book during an exam was snatched away, due to the testing authority’s confusion and the centre’s callousness, she did not get an hour of extra time to which she was legally entitled. The Court had to remind the competent authorities about their duty to provide her reasonable accommodation and inclusive education. Against this backdrop, the draft accessibility guidelines and standards for Higher Education Institutions (HEIs) and Universities released by the University Grants Commission (UGC) are a welcome intervention.
A procedural flaw
•The way in which the guidelines were released, however, left much to be desired. The public notice preceding the guidelines was inaccessible to persons with visual disabilities. This was because the notice appears to have been printed and poorly scanned. If the document had been a digital document, authenticated by the digital signature of the competent authority, it would have been fully accessible. Worse still, the same problem was seen late last year in the public notice released by the Union Home Ministry with respect to its guidelines on creating disabled-friendly infrastructure and the guidelines released by the Civil Aviation Ministry on making air travel more disabled-friendly.
•The suggestions in the guidelines are capacious in scope and breathtaking in ambition. What the guidelines ignore, however, is that disabled students are neglected and sidelined at worst or grudgingly accepted at best in universities. The guidelines have to be realistic. Crucially, each chapter of the guidelines should be followed by a checklist that distils the key action items contained in that chapter. Further, the checklist should divide these action items into those that must be immediately implemented (for example, accessibility to Information and Communication Technologies and making learning materials available in accessible formats) and those that must be implemented progressively (for example, accessibility to extracurricular activities). Further, the compliance of HEIs with this checklist must be monitored by the UGC, by requiring HEIs to submit a compliance report on an annual basis (instead of a self-certification mechanism). The UGC should also be empowered to take disciplinary action against HEIs not complying with the guidelines.
Assessment of disability-based needs
•An assessment of the needs of persons with diverse disabilities should be conducted on an annual or biannual basis by the Equal Opportunity Cell/Enabling Unit to devise and thereafter revise the institutional plan for inclusion of students with disabilities. Such an assessment will equip the administration to undertake specific need-based interventions. The assessment must be in the form of hearings in which the plan’s content or implementation can be discussed.
•Further, when a student with a disability joins an HEI, the HEI should conduct an assessment of their disability-based needs. On this basis, a plan should be drawn up to fulfil those needs. Each HEI must maintain data on students with disabilities, on the basis of parameters such as applications, enrolment, retention and participation of students in academic and non-academic activities.
•Finally, the guidelines should provide for a redress mechanism along the lines of the Rights of Persons with Disabilities Rules, 2017. The mechanism may be resorted to by aggrieved persons with disabilities in case the concerned HIE does not implement or violates the UGC guidelines. The District Education Officer referred to in Rule 7 of the Rules can be empowered to deal with any such infractions. Likewise, the UGC can consider instituting a mechanism for affected persons with disabilities to file complaints about the violation of these guidelines. Such complaints must be dealt with within a time-bound fashion. A separate chapter should be added to the guidelines which comprehensively outlines the modalities of the grievance redress mechanism.
•In sum, for the disabled, high-quality education represents a unique pathway for empowerment and meaningful participation in society. If modified suitably, these guidelines can serve as a catalyst to unlock this transformative potential for every student with disability pursuing higher education.
📰 United Nations votes are not black and white
Delegations do not vote for or against other countries; they vote for themselves
•The green, red and yellow buttons at the desks of delegates at the United Nations (UN) General Assembly and related conferences indicate only some of the options available when resolutions are put to vote. Over the years, the voting options have gone beyond ‘Yes’, ‘No’ and ‘Abstention’. It is possible to be ‘present and not participating’ or ‘absent at the time of the vote’. This makes it possible for member states to nuance their positions to suit their needs. The history of the UN shows that innovative use has been made by member states on several occasions. Some diplomats have often used these provisions to diverge slightly from their instructions to do a favour to some friendly delegations.
Voting system
•The voting system in the UN Security Council is rigid. Every vote counts because the resolutions adopted by the Security Council are mandatory for all members of the UN. The resolutions adopted under Chapter VII of the UN Charter, ‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’, are even more significant as they involve even war, as it happened in the case of Iraq.
•In fact, the provisions of the UN Charter on voting have already been ‘tweaked’. The Charter provision requires the “concurring votes of the permanent members; provided that, in decisions under Chapter VI [Pacific Settlement of Disputes], and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting”. It would seem, therefore, that an abstention by a permanent member would amount to a veto. But it is now agreed that if a permanent member does not fully agree with a proposed resolution, but does not wish to cast a veto, it may choose to abstain, thus allowing the resolution to be adopted, if it obtains the required number of nine favourable votes.
•An additional provision to add conditionalities to the vote is the explanation of vote before and after the vote. The explanation of the vote before the vote acts as canvassing for votes of others and the explanation of the vote after the vote can even amount to taking with the left hand what has been given with the right, as it happened in the case of India’s abstention on the Russian invasion. All the principles were stated in the explanation of the vote, but the vote itself was prompted by political expediency.
India’s vote
•In the recent vote on the Russian invasion of Ukraine, the impression is that China and India voted together to indicate neutrality. But the impact of the vote of China is more nuanced than India’s. If China had voted against the resolution, it would have amounted to a veto, which would not be in keeping with the cultivated image of China as a country which opposes foreign intervention in sovereign states. But the Chinese abstention reflected the new understanding between Russia and China. Intriguingly, the requirement of compulsory abstention by the affected parties in cases relating to Chapter VI does not apply to other resolutions and thus permanent members can veto resolutions against them even under Chapter VII.
•The Indian abstention in cases relating to the Soviet Union at the UN was institutionalised by Indira Gandhi in 1979, when India became the only country outside the Soviet bloc to abstain in the UN General Assembly after the Soviet Union had vetoed a Security Council resolution against its intervention in Afghanistan. The world and India have changed since then, but the compulsions for India to abstain today are as valid as they were in 1979, regardless of the emergence of the Quad. Technically, India could have abstained only in the substantive vote in the UN General Assembly, as the resolution contained references to invasion and other strong words, but it also abstained in the UN Security Council on an earlier procedural vote to refer the matter to the General Assembly. The same applied in the case of the Human Rights Council.
•The U.S. criticism of India’s vote was as expected in the context of the Quad. But it should be remembered that its criticism was even more severe in 1979, when India’s relations with the U.S. were not so close. The U.S. took stern actions like denying Tarapore fuel and supporting the jihadis in Afghanistan at that time.
•The carefully crafted voting regulations in the UN General Assembly have created comic situations. Once the Chinese delegate went out of the hall when a vote was in progress. When he returned, he realised that he could not follow the instructions given on that particular resolution. He took the floor to say that, instead of his being marked absent, it should be recorded that he would not have participated in the vote if he was present. In roll-call votes, some delegates often vote wrongly, but the Secretariat, which knows better, records a vote as it should have been cast. On one occasion, a senior politician, who came from India as a delegate, wanted to change India’s vote on Afghanistan. When India’s name was called out, he said ‘Yes’ and I had to shout from behind, ‘Abstention!’ Fortunately, the delegate did not hear the correction. Such events are legion at the UN.
•The UN regulations and practices on voting are designed to enable the delegations to express their national opinions, taking into account their vital national interests. In the ultimate analysis, delegations do not vote for or against other countries; they vote for themselves. In the case of India, votes in the Security Council, the General Assembly and the Human Rights Council reflect its current national concerns in the light of the situation in Ladakh, Afghanistan, the increasing ties between Russia and China, and its membership of the Quad. Without naming or blaming anyone, India has expressed its fundamental position that war is not a solution and diplomacy should be the only option to prevent war. It may have caused ripples in some countries, but it shall remain relevant in the emerging global order by keeping its options open.
📰 Treating values of individual freedom as trifles
The hijab judgment has struck a blow against each of these principles — liberty, equality, and fraternity
•Our social contract is built on an edifice that grants pre-eminence to individual choice. The Constitution’s Preamble recognises this when it places an onus on the state to secure to all citizens, among other things, liberty, equality and fraternity. The last of those values is fortified by a further commitment. The state, the Preamble says, will guarantee “fraternity assuring the dignity of the individual and the unity and integrity of the Nation”.
•The chief architect of the Constitution, B.R. Ambedkar, saw the standards contained in these words as forming a triumvirate of values. Liberty, equality, and fraternity, he said, were principles of life, “a union of trinity”. Divorce one from the other and the very purpose of democracy will be defeated. The Constituent Assembly believed that it was only a deep commitment to these principles that can help usher in a social revolution in the country. The structures of India’s democracy — the various minutiae of administration that the Constitution spells out — were each built on the idea that securing individual happiness required the state to foreground these standards.
Enforcing popular morality
•In that picture, independent courts, the framers thought, would stand as a guardrail against any effort to undermine social democracy. But far from acting as “sentinels on the qui vive ” — as a former Chief Justice of India once described the Supreme Court of India’s role — the judiciary has time and again enforced the popular morality of the day, treating values of individual freedom as dispensable trifles. Tuesday’s judgment by the Karnataka High Court, in Resham vs State of Karnataka , is the newest addition to this litany. It upholds a ban imposed on the use of hijabs by students in classrooms across the State (Karnataka), and, in doing so, strikes a blow against each of the principles contained in B.R. Ambedkar’s union of trinity.
Court’s use of precedent
•The judgment is premised on three broad conclusions. First, the court holds that the wearing of a hijab is not essential to the practice of Islam, and, therefore, the petitioners’ right to freedom of religion is not impinged; second, it finds that there is no substantive right to free expression and privacy that can be claimed within the confines of a classroom; and, third, according to it, since the Government’s order does not by itself ban the use of a hijab and since it is otherwise neutral, there is no discrimination aimed at Muslim women students.
•These conclusions suffer from one flaw or another. In rejecting the plea that the wearing of a hijab is a legitimate exercise of religious freedom, the court refers to a plethora of precedent that points to only “essential religious practices” enjoying constitutional protection. According to the court, the petitioners failed to produce any evidence to show that the use of a hijab was essential to Islam. Yet, despite this, it proceeds to perform a theological study — which one would think it is ill-equipped to do, especially without conducting a full-fledged trial — and concludes that Islam does not make the wearing of a hijab mandatory.
•This is an extraordinary finding for a secular court to make. No doubt, similar leaps of judgment have been made by the judiciary in the past — for example, in 2004, the Supreme Court concluded that the performance of the Tandava dance was not indispensable to the Ananda Margis faith, even though the followers of that religion believed it to be so. But if the Karnataka High Court’s inference is partly based on flawed doctrine, it must take the blame for posing to itself the question of whether at all a hijab was essential to religion.
Free choice and state action
•Unlike many of the cases in which the doctrine of essential practice is invoked, this was not a case where individual freedom was at odds with group rights. On the contrary, this was a case where exercise of free choice was curtailed by state action. The petitioners had contended that they wore the hijab as a matter of conscience. Article 25 of the Constitution guarantees to all persons not only an equal right to profess, practise and propagate religion but also a “freedom of conscience.” Counsel pointed to the Supreme Court’s judgment in Bijoe Emmanuel (1986), where the rights of Jehovah’s Witnesses who refused to partake in the singing of the national anthem was protected. There, the Court ruled that so long as students conscientiously believed that they must not participate in the recital, their rights could be abridged only in the interests of public order, morality or health.
•In Resham , the Karnataka High Court draws a facile distinction from Bijoe Emmanuel . The judgment holds that there is no evidence in this case that the petitioners conscientiously believed in the necessity of the hijab — this is anomalous given that once a pleading is made on affidavit, the onus ought to have been on the state to establish that the petitioners were not, in fact, wearing the hijab out of a sense of conscience.
•The court then proceeds to make an even more astonishing assertion: all cases where a right of conscience is pleaded, according to it, are ipso facto cases of religious freedom, and, therefore, ought to be subject to the test of essentiality. This conclusion ignores the fact that Bijoe Emmanuel was explicitly decided based on conscience and that conscience need have no direct relation to religious faith. It is possible, for example, that the hijab might not be essential to Islam, and yet that Muslim women choose to wear it as an exercise of their own individual beliefs.
On the classroom space
•That the court was simply unprepared to grapple with this difference is even more evident in its rejection of claims based on free expression. The petitioners argued that in choosing to wear the hijab, they were merely exercising a form of identity relatable to their rights to freedom of speech and privacy. The court counters this by holding that classrooms are “qualified public spaces”, where individual rights cannot be asserted to “the detriment” of “general discipline and decorum”. In spaces such as these — and the court draws a remarkable analogy with prisons — substantive rights, the judgment holds, metamorphose into derivative rights. It is unclear what the ruling means by all this, except that these apparently derivative rights are incapable of being invoked in protected environments.
•In all of this, the court ignores the classic test for determining when and how the right to free expression can be legitimately limited: that is, the test of proportionality. There is, according to the judgment, no need to dwell on legal doctrine, because “the petitions we are treating do not involve the right to freedom of speech & expression or right to privacy, to such an extent as to warrant the employment of these tests for evaluation of argued restrictions, in the form of school dress code”. In this manner, the court also brushes aside requests for “reasonable accommodation”.
Many accommodations
•Kendriya Vidyalayas, for example, as the petitioners claimed, allow for hijabs within the contours of the prescribed uniforms. But the judgment holds that to make such an accommodation would defeat the very purpose of uniforms. This finding fails to recognise that even within the existing dress code, many accommodations are, in fact, made. For instance, religious and cultural marks on the forehead and accessories on other parts of the body are not disallowed. If the purpose of the uniform is to allow for no differences, surely every exhibition of faith in the classroom must be stamped out. Therefore, we can only see the failure to provide for a reasonable accommodation for the hijab as deliberate discrimination wrought on Muslim women.
•The judgment makes repeated references to constitutional secularism. But secularism, properly understood, demands precisely what the petitioners here were pleading for: the rights to agency, choice, and equal treatment, and, more than anything else, a guarantee of fraternity undergirded, as the Preamble says, with dignity to every individual.
📰 Clean energy must use the battery of a circular economy
An efficient waste management ecosystem is crucial to manage the huge waste generated in India’s new energy push
•In the Budget speech this year, the Finance Minister, Nirmala Sitharaman, emphasised the role of cleaner technologies such as solar energy and batteries in India’s future economic growth. In addition, she mentioned the importance of transitioning to a circular economy from the existing linear one.
Market estimates
•The call for a creation of a circular economy is significant since an efficient waste management ecosystem would be necessary to manage the enormous waste generated by renewable energy projects in the coming decades. According to the International Renewable Energy Agency (IRENA) — an intergovernmental organisation that supports countries in their transition to a sustainable energy future — the cumulative waste generated by India’s total installed solar capacity could be as high as 325 kilotonnes by 2030. A consulting firm, JMK Research and Analytics, estimates that the market for battery recycling will be around 23 Gigawatt hours (GWh) by 2030. The prevalence of a circular economy could also partially insulate these industries from potential supply chain shocks triggered by extraneous developments.
•A study by the Council on Energy, Environment and Water (CEEW) has estimated that India would need over 5,630 GW of solar and 1,792 GW of wind energy to achieve its net-zero target in the year 2070. A robust renewables waste management and recycling ecosystem could help people and India reduce environmental harm, provide energy security, and also create new jobs. So, here are six steps to nurture a circular economy in the Indian renewable energy industry.
A clear framework
•First, policymakers should revise existing electronic waste management rules to bring various clean energy components under their ambit. These rules are based on extended producer responsibility that identifies component producers as responsible entities to manage their waste products. The Indian renewable energy industry has a complex structure that comprises various manufacturers, assemblers, importers and distributors. Hence, the revised regulations should clearly define the responsibilities of various stakeholders involved in the renewable energy value chain and provide annual targets for the collection and the recycling of waste.
•Second, dumping and burning of different components should be banned. Currently, in the absence of any regulation, landfilling is the cheapest and most common practice to manage renewable energy waste. However, it is not environmentally sustainable. All clean energy technologies thrive on metals and non-metals with different levels of toxicity. If the waste equipment is dumped in the open, then these elements could leach into the environment and enter the food chain. Studies show that the leaching of heavy metals such as lead and cadmium from solar photovoltaic modules could increase by 90% and 40%, respectively, under acidic conditions. Further, burning the polymeric encapsulant layer in solar photovoltaic modules releases toxic gases such as sulphur dioxide and some volatile organic compounds.
R&D is essential
•Third, the renewable energy industry should invest in the research and development of recycling technologies. Recycling is a multistep process that includes dismantling, disassembly, and extraction. Dismantling is largely a manual process that is sometimes automated. Disassembly can be done mechanically, thermally or chemically. Besides these traditional methods, investments in research and development could help discover new ways of recycling that result in higher efficiency and a less environmentally damaging footprint. Industries should also explore technology transfers with global recycling firms for establishing domestic waste recycling facilities. For instance, efficient metal recovery from waste provides a resilient supply of raw material for the renewable energy manufacturing industry.
Focus on finance, quality
•Fourth, there has to be a creation of innovative financing routes for waste management. Access to finance is a major roadblock for players in the recycling ecosystem. The central government should nudge public and private sector banks to charge lower interest rates on loans disbursed for setting up renewable energy waste recycling facilities. Assurance of a minimum waste quantum to run these facilities and issuing performance-based green certificates to recyclers that could be traded to raise money for waste management would also help ease the financial burden. A market for recycled materials could also be created through mandatory procurement by the renewable energy and other relevant manufacturing industries.
•Fifth, there needs to be an improvement in product design and quality. Renewable energy component manufacturers should find substitutes for toxic metals such as cadmium and lead used in their products and simplify product designs to reduce recycling steps. Such improvements in process efficiencies could go a long way in curbing waste creation at the source and its subsequent impact on the environment.
•Six, the Union and State governments should set stringent quality control standards for components used in their tenders. This will prevent premature end-of-life of components, and consequent waste creation. Substandard components generate considerable waste due to early life damage that is often irreplaceable, and the components often have to be discarded. Such quality enforcement could also position India’s renewable energy industry as a global supplier of quality products.
Largely in the informal sector
•The renewable energy recycling ecosystem has a complex structure where there are multiple actors involved, but it would be an integral part of our journey toward a sustainable future. Beyond sustainability, it would also offer quality employment opportunities for the future generations as new jobs would be created across the entire value chain of waste management and recycling. Further, workers in the informal sector could access various socio-economic benefits and look forward to an improved quality of life. We ought to remember that the majority of India’s recycling sector is informal and workers have to work in unsafe environments without standardised wages. Therefore, developing an efficient renewable energy waste management and circular ecosystem is imperative rather than a choice. We can ignore this, but only at our own peril.
