THE POLITY

1. ON MARITAL RAPE, REGRESSIVE NOTIONS UNDERMINE THE AUTONOMY OF WOMEN

THE CONTEXT: Being raped by someone in whom you have reposed trust is likely to have an indelible emotional impact. Marriage does not change that.

THE EXPLANATION:

• On 11 May, two judges of the Delhi High Court handed down separate judgments in RIT Foundation v Union of India. The issue before the Court was straightforward. Section 375 of the IPC defines “rape” as when a man has sex with a woman without her consent. However, an exception to Section 375 provides that it is not raped for a husband to have sex with his wife, regardless of consent.
• The effect of the law is that no husband can be prosecuted for the rape of his adult wife. Four petitions challenging the constitutional validity of the “marital rape exception” were filed at the Delhi HC.
• In his judgment, Justice Rajiv Shakdher concluded that the marital rape exception violated the rights to life, equality, non-discrimination, and freedom of speech and expression under the Constitution. His analysis is sound, even if not surprising.
• There is no reasonable basis to distinguish between married and unmarried women. Marriage is a relationship of equals, and women do not forfeit their agency and sexual autonomy upon marriage. It is no answer to say that a man who rapes his wife may be prosecuted for other offences, such as cruelty. Rape must be called out for what it is.
• Justice C Hari Shankar took a different view, concluding that the marital rape exception is constitutionally valid. Five aspects of his opinion are particularly striking. First, the judge held that it is the wrong starting point to assume that a husband who has sex with his wife without her consent “commits rape”.
• The judge noted that the effect of the exception to Section 375 of the IPC is that any sex between a husband and wife, whether or not consensual, is excluded from the definition of rape. That analysis does not bear scrutiny. Sex within marriage is carved out (by exception) from the definition of rape. It follows that, in the absence of that exception, non-consensual sex within marriage would be rape.
• More fundamentally, the judge allowed semantics to impede robust constitutional analysis. It makes little difference whether the starting point is that non-consensual sex within marriage should be characterized as rape or, for example, sexual assault. The critical question is whether it is unconstitutional to exclude non-consensual sex from the definition of rape.
• Second, Justice Shankar’s opinion elevates marriage to a status that is anachronistic. The judge held that the marital rape exception was “aimed at preservation of the marital institution, on which the entire bedrock of society rests”.
• The difficulty with that proposition is obvious — is it the policy of the law that marriage is to be preserved at all costs, even when a man has non-consensual sex with his wife? If so, does that withstand constitutional scrutiny? The judge then observed, on a lighter note, that neither lawyers nor judges would be around to examine this issue absent the institution of marriage. Scientists might disagree.
• Third, the judge rejected the challenge to the martial rape exception based on the right to equality on the spurious assumption that the impact on a woman who is raped by her husband cannot “be equated with the impact of a woman who is raped by a stranger”.
• Indeed, he goes so far as to say that “disagreements” (a euphemism for non-consensual sex) in marriage are “but natural” and “may even lend strength to the marital bond”. No evidence is cited in support of those claims. They also defy logic. Being raped by someone in whom you have reposed trust is likely to have an indelible emotional impact. Sadly, it is relatively easy to find many first-hand accounts that confirm this. It is perplexing to understand how non-consensual sex can ever strengthen a marriage.
• Fourth, the judge concluded that, as a practical matter, a “majority of Indian women” would be reluctant to file a complaint of rape against their husbands in any event. Even if that were true, it is no reason to disempower, by the operation of the law, women who do have the resolve to make a rape complaint against their husbands from doing so. No one expects tens of thousands of rape complaints to come out of the woodwork after the marital rape exception is declared unconstitutional. But some will, and they will inspire others.
• Fifth, Justice Shankar held that it is not within the court’s power to create a new offence, and striking down the marital rape exception would have that effect. There is no question of creating a new offence — the court would simply be striking down an exception carved out of an existing offence.
• The only principled basis for the judge’s objection is that it may be unfair to punish someone for rape for conduct that was excluded from the definition of rape when it was undertaken. But that is not a reason to avoid striking down the marital rape exception. The easy solution is for the court to declare that its judgment will apply only to conduct after the date of the judgment.
• An appeal is now pending before the Supreme Court. Asking Parliament to revisit the marital rape exception may be the path of least resistance. However, as Justice Rajiv Shakdher observed in his judgment, “it is incumbent on courts to take decisions concerning complex social issues and not dribble past them”.
• Whether the marital rape exception violates fundamental rights under the Constitution is a question that falls within the Court’s core competency. There is only one reasonable answer to that question.

 2. JUSTICE DELIVERY IN INDIA IS INDEED LOOKING ‘HOPELESS’

THE CONTEXT: The Attorney General Is Right, Justice Delivery in India Is Indeed Looking ‘Hopeless’.

THE EXPLANATION:

• Justice P.N. Bhagwati said in his Law Day address in 1985 that our judicial system is on the verge of collapse. In 1996, Justice Bhagwati said that the Supreme Court of India is the most powerful court in the world. I wonder what made him change his opinion. Assuming what he said in 1996 is correct, please compare it with the situation today.
• Recently, Chief Justice of India N.V. Ramana addressed a very high powered conference in which he said that decisions of the courts are “not implemented by government for years together” resulting in a rise in contempt of court petitions. Has our justice delivery system now collapsed or is it teetering and still on the verge of collapse? I am reminded of Mark Antony’s: “O, what a fall was there, my countrymen!”
• The recruitment of judicial officers at the district level is through an examination conducted under the aegis of the high court. The Supreme Court has laid down a yearly calendar of events for the recruitment process with timelines. This is undoubtedly well-intentioned, but does the Supreme Court have administrative control over the high court through prescriptive guidelines? Do we know how many high courts are actually following the schedule? I would be surprised if even a handful are following the mandate. The fault lies with the system that is not able to ensure filling up vacancies.
• The situation with regard to high court vacancies is worse. This is where the almighty political executive comes into the picture. The CJI rightly said that judges do not appoint judges – they only recommend candidates for appointment. The president makes the appointment when the papers are put up to him for issuing the necessary warrants by the political executive. This can take months and years in most cases, because of the government’s whims and fancies. Recently, Aditya Sondhi of the Karnataka high court withdrew his consent for an appointment after having waited for a year for the government to decide. Eventually, the government took a decision but bypassed the recommendation of the Supreme Court. There’s not to reason why.
• The problem of plenty (of cases) is not necessarily linked to judicial vacancies. A former CJI boasted that he ensured there is no vacancy of judges in his parent high court. He was right, but did it have any impact on the pendency of cases? A casual study of the information available in the National Judicial Data Grid reveals that it made no positive difference to the pendency of cases in that high court.
• The solution? Even though I agree that the justice delivery system is in a “hopeless situation” and beyond repair, a few steps might mitigate the problems of millions of litigants. First, every case filed by the Union of India or any state government should be accompanied with a demand draft of Rs 1 lakh to take care of litigation expenses of the citizen who is dragged to court. If the court declines to issue notice to the citizen, the amount should be kept in a reserve fund for future utilisation. The governments must pay, period. The governments must also pay Rs 1 lakh for every adjournment sought – after all, the litigant has to pay his or her lawyer an appearance fee even if the case is adjourned. Actually, even governments pay their lawyers a fee for every adjournment.
• The CJI has said that governments are the biggest litigants, accounting for nearly 50% of pending cases. If courts are imposing heavy costs on individual litigants, why are governments or government departments treated with kid gloves? Governments must be held accountable for litigation. The sooner the courts realise it, the better.

THE ECONOMIC DEVELOPMENT

3. ETHANOL BLEND IN PETROL TO BE RAISED TO 20% IN 3 YEARS

THE CONTEXT: The Union Cabinet approved amendments to the National Policy on Biofuels, 2018, to advance the date by which fuel companies have to increase the percentage of ethanol in petrol to 20%, from 2030 to 2025. The policy of introducing 20% ethanol will take effect from April 1, 2023.

THE EXPLANATION:

• A press statement from the government said the new policy would allow more feed stock for producing biofuel and foster the development of indigenous technologies.
• A 2021 report by the NITI Aayog said that “immense benefits” could accrue to the country by 20% ethanol blending by 2025, such as saving ₹30,000 crore of foreign exchange per year, increased energy security, lowered carbon emissions, better air quality, self-reliance, better use of damaged food grains, increased farmers’ incomes and greater investment opportunities.
• India achieved 9.45% ethanol blending as on March 13, 2022, according to the Ministry of Petroleum and Natural Gas (MoPNG). The Centre projects that this will reach 10% by the end of financial year 2022. The government first announced its plans of advancing the 20% blending target in December 2020.
• A 10% blending of petrol does not require major changes to engines but a 20% blend could require some changes and may even drive up the prices of vehicles. A greater percentage of blending could also mean more land being diverted for water-intensive crops such as sugar cane, which the government currently subsidises.
• The NITI Aayog projects an ethanol demand of 10.16 billion litres by 2025, based on the adoption of vehicles. The current ethanol production capacity in India of 4.26 billion litres derives from molasses-based distilleries, and 2.58 billion litres from grain-based distilleries.
• This is expected to expand to 7.6 billion litres and 7.4 billion litres respectively and will require six million tonnes of sugar and 16.5 million tonnes of grains per annum by 2025.
• The increased allocation of land also puts into question the actual reduction in emissions that blending ethanol with petrol brings about.

ENVIRONMENT AND ECOLOGY

4. NGT ORDERS STAY ON DRAFT SHIMLA DEVELOPMENT PLAN 2041

THE CONTEXT: The National Green Tribunal (NGT) May 12 asked the Himachal Pradesh Town and Country Planning Department to put on hold the Draft Development Plan, Shimla Planning Area 2041.

THE EXPLANATION:

• The plan proposes to permit the construction of more floors, new constructions in core area, constructions in the green area, and development in the sinking and sliding area in violation of the NGT orders.
• If the State proceeds in such a manner, not only will it damage rule of law, it may result in disastrous consequences for the environment and public safety, said the green court bench led by Justices Adarsh Kumar Goel, Sudhir Agarwal and Arun Kumar Tyagi.
• Yogendra Mohan Sengupta, an environmental activist had filed the application in the NGT on April 20, 2022 against the draft development plan on the ground that such a plan is contrary to the sustainable development principle and destructive of the environment and public safety.
• The application said that NGT had already issued regulatory measures on November 16, 2017 to be adopted in terms of the number of floors, and restrictions on constructions in core and green areas of Shimla.
• The NGT in its November 2017 judgement had warned that if unplanned and indiscriminate development was allowed, there would be “irreparable loss and damage to the environment, ecology and natural resources on one hand and inevitable disaster on the other”.
• To prevent such untoward disasters, the court had prohibited new construction of any kind (residential, institutional and commercial) in any part of the core and green / forest areas “as defined under the various notifications issued under the Interim Development Plan as well by the State Government.”
• The order also said that even beyond the core and forest areas and the areas falling under the authorities of the Shimla Planning Area – construction would be permitted strictly in accordance with the provisions of the Town and Country Planning Act, Development Plan and the municipal laws in force. Even in these areas, construction would not be permitted beyond two storeys plus attic floor.
• The project background of the Draft Development Plan-Shimla Planning Area 2041, which was published in February 2022, read: There is an urgent need of a development plan for Shimla in order to revive the growth regulators with the vision for a well-regulated and planned Shimla and its peri-urban areas, best capturing the urbanisation trend and aspiration of the city and its fringes.
• The Development Plan was prepared under the AMRUT sub-scheme of the Government of India by the Town and Country Planning Department, Himachal Pradesh. A geographic information system-based development plan formulation for Shimla Planning Area comprises Shimla Municipal Corporation and its surrounding areas, including Kufri, Shoghi and Ghanahatti Special Areas and Additional villages, under the provisions of the Himachal Pradesh Town and Country Planning Act, 1977.
• It is interesting to note that the Draft Development Plan said that “town planning does not come under the purview of the NGT,” and that the orders of the National Green Tribunal on “height restriction in Shimla Planning Area is a dent on meeting the future urbanisation challenges.”
• The Tribunal directed that the Himachal Pradesh Town and Country Planning Department should not proceed from taking any further step in pursuance of the Draft Development Plan 2041.

5. INDIA’S VULNERABILITY TO DROUGHT

THE CONTEXT: A United Nations report has revealed that many parts of India fall under the list of regions that are vulnerable to drought globally.

THE EXPLANATION:

• The report stated that India’s Gross Domestic Product (GDP) reduced by 2 to 5 percent between 1998 and 2017 due to severe droughts in the country.
• An upward trajectory in the duration of droughts and the severity of impacts, not only affecting human societies but also the ecological systems upon which the survival of all life depends, including that of our own species.
• UNCCD’s COP15 focuses on desertification, land degradation, and drought, with the theme for the conference being “Land. Life. Legacy: From scarcity to prosperity.” The conference has brought together government representatives, private sector members, and civil society stakeholders to ensure that land continues to benefit present and future generations.
• It proposes to tackle “the interconnected challenges of land degradation, climate change, and biodiversity loss” as we move into the UN Decade on Ecosystem Restoration.
• The UNCCD’s 197 parties, which includes 196 member States as well as the European Union, are expected to brainstorm sustainable ideas to further land restoration and drought resilience, focusing on “future-proofing land use.” The UNCCD envisions restoring one billion hectares of degraded land by 2030, creating a land degradation-neutral world.
• According to World Bank estimates, drought conditions can force up to 216 million people to migrate by 2050. Other factors at play along with drought could be water scarcity, declining crop productivity, rise in sea levels, and overpopulation.
• Weather, climate and water hazards have accounted for 50 percent of all disasters and 45 percent of all reported deaths since 1970, World Meteorological Organisation data has revealed. Nine in ten of these deaths have occurred in developing countries.
• Between 2020 and 2022, 23 countries have faced drought emergencies. These are Afghanistan, Angola, Brazil, Burkina Faso, Chile, Ethiopia, Iraq, Iran, Kazakhstan, Kenya, Lesotho, Mali, Mauritania, Madagascar, Malawi, Mozambique, Niger, Somalia, South Sudan, Syria, Pakistan, United States, and Zambia. According to the report, climate change alone will cause 129 countries to experience an increase in drought exposure in the next few decades.
• More than a billion people around the world were affected by drought in 2000-19, making it the second-worst disaster after flooding. Africa was the worst hit, with 134 droughts, of which 70 occurred in East Africa.
• The World Health Organisation has noted that approximately 55 million people globally are directly affected by droughts annually, making it the most serious hazards to livestock and crops in almost every part of the world.
• The impact of drought is, however, not uniform across genders. Research shows that women and girls in emerging and developing countries suffer more in terms of education levels, nutrition, health, sanitation, and safety as a result of droughts. The burden of water collection also disproportionately falls on women (72 percent) and girls (9 percent). The report notes that they may spend up to 40 per cent of their caloric intake fetching water.
• In 2022, over 2.3 billion people are facing water stress. Almost 160 million children are exposed to severe and prolonged droughts.
• According to the report, if predictions are correct and global warming reaches 3° C by 2100, drought losses could be five times higher than today’s levels. The largest increase in drought losses is projected in the Mediterranean and the Atlantic regions of Europe.
• Australia’s megadrought in 2019-2020 contributed to “megafires” resulting in one of the most extensive losses of habitat for threatened species. About three billion animals were killed or displaced in the Australian wildfires. On a related note, 84 percent of all terrestrial ecosystems are threatened by changing and intensifying wildfires.
• According to a 2017 report by the Food and Agriculture Organisation, the percentage of plants affected by drought has more than doubled in the last 40 years. Around 12 million hectares of land are lost each year due to drought and desertification.

6. SEA LEVELS ALONG INDIAN COAST RISING AT FASTER RATE THAN GLOBAL AVERAGE: WMO REPORT

THE CONTEXT: According to the World Meteorological Organization’s (WMO) State of the Global Climate in 2021 report released May 18, 2022. Sea levels along almost the entire Indian coast are rising faster than the global average.

THE EXPLANATION:

• Globally, the rate of sea-level rise was 4.5 millimetres per year between 2013 and 2021. This was more than twice the rate between 1993 and 2002.
• The major reason for the increase in sea levels is the accelerated loss of ice from the ice sheets in the Arctic and Antarctic regions. The increase happened despite the La Nina phenomenon being prevalent during the beginning and the end of 2021.
• La Nina is the cooler-than-normal phase of the El Nino Southern Oscillation phenomenon in the equatorial Pacific Ocean. Usually during La Nina years, sea levels are less than the mean.
• During El Nino (warmer-than-normal phase) years, they are higher than the mean. In 2021, the global mean sea level rise was close to the long-term trend.
• The increase in sea levels is not happening uniformly in all parts of the global oceans. In the Indian Ocean region, the rate of sea-level rise is the fastest in the south western part, where it is faster by 2.5 mm/year than the global average.
• In other parts of the Indian Ocean region, including the coastlines, the rate is between 0 and 2.5 mm / year, faster than the global average.
• Other regions where the rate is faster than the global average are the western Tropical Pacific, the South-west Pacific, the North Pacific and the South Atlantic.
• “Regional patterns of sea-level change are dominated by local changes in ocean heat content and salinity,” the report pointed out.
• The Indian Ocean region has previously been described as the fastest-warming ocean in the world, with an increase in temperature of one degree Celsius as against the global average of 0.7°C between 1951 and 2015. Ocean heat content had already reached record levels in 2021 globally.
• Such a sea-level rise could have major consequences for the millions of people living along the Indian coastline. While gradual erosion of the coastline, subsidence and inundation of deltas is a long-term concern for the people living close to the sea, the immediate concern is to do with the combined impact of tropical cyclones and sea-level rise.
• For instance, when a tropical cyclone occurs, the storm surge along with heavier rainfall, sea-level rise and high tides could make the resultant flooding much more intense and hence difficult to manage.
• Storm surge is the increase in the height and energy of sea waves during a cyclone which depends on the wind speeds of the cyclone. The higher the wind speeds of a cyclone, the more is their ability to pile up water towards the centre of the cyclone; hence a stronger storm surge.
• Storm surges may also get intensified if there is a high tide during the time of the cyclone. The combined effect of a storm surge and a high tide is known as a storm tide.
• Storm surges and tides bring saline water into agricultural fields and people’s homes, leading to long-term damage, including a decrease in soil quality.
• Recent cyclones in the Indian Ocean region have increased in intensity, with greater wind speeds than before which has meant higher storm surges. As sea levels rise, the storm surges will become even stronger and take more seawater onto land, causing inundation.
• In the case of Super Cyclone Amphan in 2020, seawater had come in 25 kilometres inland, inundating large parts of the Sunderbans delta which is already the most vulnerable to both, cyclones and sea-level rise in India.
• A cyclonic storm hits the Sunderbans every 1.67 years, according to the analysis by India Meteorological Department, Pune. Shorter return periods indicate more frequent cyclones. The researchers studied cyclonic storms passing within about 90 kilometres of the coastal districts between 1961 and 2020.
• Sea levels have risen at a rate of 30 mm per year in the Sunderbans delta in the last two decades, with a 12 percent loss in the shoreline, according to the National Aeronautics and Space Administration’s Landsat satellite imagery.
• This is more than six times the global average and has already led to the displacement of around 1.5 million people from the delta.
• If global warming is not kept under the 1.5°C mark as agreed to by countries under the Paris Agreement by rapid reduction of greenhouse gas emissions, the rise in sea levels and intense cyclones will make places like the Sunderbans unlivable, causing a huge migration of people inland and a cascade of other socio-economic problems.

THE PRELIMS PRACTICE QUESTIONS

QUESTION FOR 19th MAY 2022

Q1. Consider the following statements about World Meteorological Organization (WMO):

1. It was established in 1950 through WMO Convention.
2. It is a specialized agency of the United Nations.
3. Its secretariat is headquartered in Rome.
4. India is a founding member of WMO.

Which of the statements given above is/are correct?

a) 1 and 2 only

b) 1, 2 and 4 only

c) 2, 3 and 4 only

d) All of them

ANSWER FOR THE 18^th MAY

Answer: B

Explanation:

• Statement 1 is incorrect: WPI is used as a measure to understand inflation at the producer level.
• Statement 2 is correct: It is compiled by the Office of Economic Advisor.
• Statement 3 is incorrect: It considers the price changes only in goods and not in services.

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