1.This judicial selection needs more than a tweak
The collegium system and the mysteries underlining its decision-making dilute the importance of the High Courts
In recent weeks, the Supreme Court of India’s collegium has been busy. New judges have been appointed to the Court on its advice and long overdue vacancies have been filled up. Now, after a meeting held on September 16, the body has made proposals to alter the existing composition of various High Courts. When these recommendations are notified, new Chief Justices will be appointed to as many as eight different courts, five existing Chief Justices will swap positions with others, and a slew of puisne judges will be moved to new courts.
A need for transparency
These recommendations are seen as reflective of a new and proactive collegium. A resolve for swiftness is fine as far as it goes; clearing up vacancies is a minimal requirement of a functioning system. What ought to concern us, though, is that long-standing apprehensions about the collegium’s operation remain unaddressed: specifically, its opacity and a lack of independent scrutiny of its decisions. These misgivings are usually seen in the context of a battle between the executive and the judiciary. Less evident is the effect that the failings have on the status of the High Courts. Today, even without express constitutional sanction, the collegium effectively exercises a power of supervision over each of the High Courts.
For nearly two years, despite vacancies on the Bench, the collegium made no recommendations for appointments to the Supreme Court. The conjecture in the press was that this logjam owed to a reluctance amongst some of its members to elevate Justice Akil Kureshi to the Court. Indeed, it was only after a change in its composition that the panel recommended on August 17 a list of names for elevation. This list did not contain Justice Kureshi’s name.
The perfunctory nature of the collegium’s resolutions means that we do not know the reasons for his exclusion. We also do not know why five Chief Justices, including Justice Kureshi, and several other puisne judges are now being transferred to different courts. This is not to suggest that these decisions are unfounded. It is possible that each of the choices made is predicated on administrative needs. But whatever the rationale, surely the public has a right to know.
The middle course
Separation of powers is a bedrock principle of Indian constitutionalism. Inherent in that idea is the guarantee of an autonomous judiciary. To that end, the process of appointing and transferring judges assumes salience. But the question of how to strike a balance between the sovereign function of making appointments and the need to ensure an independent judiciary has long plagued the republic.
The Constitution’s framers wrestled over the question for many days. Ultimately, they adopted what Dr. B.R. Ambedkar described as a “middle course”. That path stipulates the following: Judges to the Supreme Court are to be appointed by the President of India in consultation with the Chief Justice of India (CJI) and such other judges that he deems fit. Judges to the High Courts are to be appointed by the President in consultation with the CJI, the Governor of the State and the Chief Justice of that court. In the case of transfers, the President may move a judge from one High Court to another, after consulting the CJI.
Where primacy rests
In this design, there is no mention of a “collegium”. But since 1993, when the Supreme Court rendered a ruling in the Second Judges Case, the word consultation has been interpreted to mean “concurrence”. What is more, that concurrence, the Court held there, ought to be secured not from the CJI alone, but from a body of judges that the judgment described as a “collegium”. Thus, the Court wound up creating a whole new process for making appointments and transfers and carved out a system where notional primacy came to rest in the top echelons of the judiciary.
This procedure has since been clarified. The collegium for appointments to the Supreme Court and for transfers between High Courts now comprises the CJI and his four senior-most colleagues, and for appointments to the High Courts comprises the CJI and his two senior-most colleagues. When appointing judges to the High Courts, the collegium must also consult other senior judges on the Supreme Court who had previously served as judges of the High Court under consideration. All of this is contained in a “Memorandum of Procedure” (MoP). But there is, in fact, no actual guidance on how judges are to be selected.
The NJAC and after
In 2015, Parliament sought to undo the labyrinthine procedures put in place by the Court through the 99th Constitutional Amendment. The National Judicial Appointments Commission (NJAC), that the law created, comprised members from the judiciary, the executive, and the lay-public. But the Court scuppered the efforts to replace the collegium and it held in the Fourth Judges Case that judicial primacy in making appointments and transfers was an essential feature of the Constitution. In other words, the Court held that a body that found no mention in the actual text of the Constitution had assumed a position so sacrosanct that it could not be touched even by a constitutional amendment.
To be sure, the NJAC was far from perfect. There were legitimate fears that the commission might have resulted in the appointment of malleable judges. Therefore, it is plausible to argue that until a proper alternative is framed, the collegium represents the best solution; that allowing senior judges of the Supreme Court primacy in matters of appointments and transfers is the only practical way to guarantee the independence of the judiciary.
But when the Court struck down the NJAC, it also promised to reform the existing system. Six years down the line those promises have been all but forgotten. A new MoP, for instance, is nowhere in sight. The considerations that must go into the procedure for selecting judges is left unexplained. The words “merit” and “diversity” are thrown around without any corresponding debates on what they, in fact, mean. Somehow, amidst all of this, we have arrived at a consensus that enveloping a veil over the process of selection is essential to judicial autonomy, and that there is no legitimate reason why the public ought to know how judges are chosen and transferred.
In the case of the latest set of recommendations, five Chief Justices of High Courts have been reshuffled. Our constitutional scheme envisages no power of administrative superintendence in the Supreme Court over the High Courts. But when transfers are made routine, when the process of appointing Chief Justices to High Courts is shrouded in secrecy, a de facto system of oversight is put in place.
Getting back the shine
It is clear that we have come a long way from a time when Chief Justices of High Courts declined invitations to the Supreme Court, because they valued the work that they were already entrusted with. Restoring High Courts to that position of prestige must be seen as essential to the process of building trust in our Constitution. Achieving this will no doubt require more than just a tweak in the process of appointments. But what is clear is that the present system and the mysteries underlining the decision-making only further dilute the High Courts’ prominence.
When Chief Justices are moved around with alacrity, and when they are accorded tenures lasting a matter of months, at best, it is impossible for them to make any lasting changes. At some point we must take seriously the task of reforming the existing scheme, because the status quo is ultimately corrosive of the very institutions that it seeks to protect.
2.Sea level rise is certain
This has implications for the future even under the low emissions scenarios
The recently published Intergovernmental Panel on Climate Change (IPCC) Assessment Report from Working Group I — ‘Climate Change 2021: The Physical Science Basis’ — is a clarion call for climate action. It provides one of the most expansive scientific reviews on the science and impacts of climate change.
The report discusses five different shared socio-economic pathways for the future with varying levels of greenhouse gas (GHG) emissions. The scenarios illustrated are the following: very low and low GHG emissions, where emissions decline to net zero around or after the middle of the century, beyond which emissions are net negative; intermediate GHG emissions; high and very high emissions where they are double the current levels by 2100 and 2050, respectively. Even in the intermediate scenario, it is extremely likely that average warming will exceed 2°C near mid-century. The average global temperature is already 1.09°C higher than pre-industrial levels and CO2 concentration in the atmosphere is currently 410 ppm compared to 285 ppm in 1850.
Over 200 experts working in several domains of climate have put the report together by assessing the evidence and the uncertainties. They express their level of confidence (a qualitative measure of the validity of the findings) ranging from very low to very high. They also assess likelihood (a quantitative measure of uncertainty in a finding) which is expressed probabilistically based on observations or modelling results.
Come hell or high water
Close to 700 million people worldwide live along the coast and there continue to be plans to expand coastal cities. Therefore, understanding the risks involved from climate change and sea level rise in the 21st and 22nd centuries is crucial. Sea level rise will continue after emissions no longer increase, because oceans respond slowly to warming. The centennial-scale irreversibility of sea level rise has implications for the future even under the low emissions scenarios.
Sea level rise occurs mainly due to the expansion of warm ocean waters, melting of glaciers on land, and the melting of ice sheets in Greenland and Antarctica. Global mean sea level (GMSL) rose by 0.2m between 1901 and 2018. The average rate of sea level rise was 1.3 mm/year (1901-1971) and rose to 3.7 mm/year (2006-2018). While sea level rise in the last century was mainly due to thermal expansion, glacier and ice sheet melt are now big contributors.
In the low emissions scenario, GMSL is expected to be 0.19m in 2050 and 0.44m by 2100. In the very high emissions scenario, GMSL is expected to be about 0.23m in 2050 and 0.77m in 2100. These increases are relative to 1995-2014 and do not include uncertainties in ice sheet processes.
Scientists rely on ice sheet models to estimate future glacier melt. While these models have improved over the years, there are shortcomings in the knowledge and representation of the physical processes.
Ice sheets can destabilise rapidly as the water gets warm (marine ice sheet instability or MISI). Ice cliffs can collapse swiftly in a related process, leading to rapid sea level rise; this is marine ice cliff instability (MICI). Such changes are difficult to model and MICI events are not included in the sea level projections mentioned above.
As Siegert et al. indicate, changes in ice-ocean interactions can cause extensive and rapid sea level rise. This happens from mass loss of ice shelves (ice that flows into cold oceans while attached to the land), which may disintegrate suddenly. Under strong warming scenarios, ice shelves become vulnerable and lead to MISI. In the very high emissions scenario, with low confidence (and in the 17th-83rd percentile range), sea level rise can be as high as 1.61m by 2100.
Using ice sheet models coupled with ocean models to create probabilistic scenarios for the future is therefore tricky. The models do not capture the abrupt and non-linear dynamics of changes that take place. The report has a high-end storyline that includes processes where there is uncertainty. The main uncertainty lies in ‘when’ rather than ‘if’ the high-end scenario occurs. Projections based on ‘structured expert judgments’ indicate that sea level rise as high as 2.3m by 2100 cannot be ruled out.
According to the UN Environment Programme Emissions Gap Report, the world is heading for a temperature rise above 3°C this century, which is double the Paris Agreement aspiration. And there is deep uncertainty in sea level projections for warming above 3°C.
Vulnerability in India
Communities along the coast in India are vulnerable to sea level rise and storms, which will become more intense and frequent. They will be accompanied by storm surges, heavy rain and flooding. Even the 0.1m to 0.2m rise expected along India in the next few decades can cause frequent coastal flooding. A speculator might think that if less than a metre sea level rise by 2100 is the likely scenario, they have another 60-80 years to continue developing infrastructure along the coast. That would not, however, be the right way to interpret the IPCC data.
The uncertainty regarding a metre or more of sea level rise before 2100 is related to a lack of knowledge and inability to run models with the accuracy needed. Low confidence does not mean higher sea level rise findings are not to be trusted. In this case, the low confidence is from unknowns — poor data and difficulty representing these processes well in models. Ignoring the unknowns can prove dangerous.
Adaptation to sea level rise must include a range of measures, along with coastal regulation, which should be stricter, not laxer, as it has become with each update of the Coastal Regulation Zone. The government should not insure or bail out speculators, coastal communities should be alerted in advance and protected during severe weather events, natural and other barriers should be considered in a limited manner to protect certain vulnerable areas, and retreat should be part of the adaptation strategies for some very low-lying areas.
United Nations Environment Programme
- The UNEP is a leading global environmental authority established on 5th june 1972.
- Functions: It sets the global environmental agenda, promotes the sustainable development within the United Nations system, and serves as an authoritative advocate for global environment protection.
- Major Reports: Emission Gap Report, Global Environment Outlook, Frontiers, Invest into Healthy Planet.
- Major Campaigns: Beat Pollution, UN75, World Environment Day, Wild for Life.
- Headquarters: Nairobi, Kenya.
3.WHO tightens global air quality norms
Move has no immediate effect in India as its rules don’t meet world body’s existing standards
The World Health Organisation (WHO), in its first-ever update since 2005, has tightened global air pollution standards in recognition of the emerging science in the past decade that the impact of air pollution on health is much more serious than earlier envisaged.
The move does not have an immediate effect in India as the National Ambient Air Quality Standards (NAAQS) do not meet the WHO’s existing standards. The government has a dedicated National Clean Air Programme that aims for a 20% to 30% reduction in particulate matter concentrations by 2024 in 122 cities, keeping 2017 as the base year for the comparison of concentration. These are cities that do not meet the NAAQS when calculated from 2011 to 2015.
However, experts say the WHO move sets the stage for eventual shifts in policy in the government towards evolving newer stricter standards.
“This will soon become part of policy discussions — much like climate targets to reduce greenhouse gas emissions keep getting stricter over time — and once cities and States are set targets for meeting pollution emission standards, it could lead to overall changes in national standards,” said a senior official, who is part of a high- level commission to monitor air quality standards. The person declined to be identified as he is not authorised to speak to the media.
The upper limit of annual PM2.5 as per the 2005 standards, which is what countries now follow, is 10 microgram per cubic metre. That has now been revised to five microgram per cubic metre. The 24-hour ceiling used to be 25 microgram but has now dropped to 15. The upper limit of PM10, or particulate matter of size exceeding 10 microgram, is 20 microgram and has now been revised to 15, whereas the 24-hour value has been revised from 50 to 45 microgram.
India’s NAAQs — last revised in 2009 — specify an annual limit of 60 microgram per cubic metre for PM10 and 100 for a 24-hour period. Similarly it’s 40 for PM 2.5 annually and 60 on a 24-hour period. There are also standards for a host of chemical pollutants including sulphur dioxide, lead and nitrogen dioxide.
Environmental organisation Greenpeace, in a statement, said the new guidelines meant that among 100 global cities, Delhi’s annual PM2.5 trends in 2020 was 16.8 times more than the WHO’s revised air quality guidelines, while Mumbai’s exceeded eight-fold, Kolkata’s 9.4, Chennai’s 5.4, Hyderabad’s 7 and Ahmedabad’s 9.8.
“WHO’s new Air Quality Guidelines are an evidence-based and practical tool for improving the quality of the air on which all life depends. I urge all countries and all those fighting to protect our environment to put them to use to reduce suffering and save lives,” WHO Director-General Tedros Adhanom Ghebreyesus said in a statement.
Every year, exposure to air pollution is estimated to cause 7 million premature deaths and result in the loss of millions more healthy years of life.
Severe health crisis
“Air pollution is a severe health crisis and WHO’s revised air quality guidelines bring back the focus to the issue,” said S.N. Tripathi, Professor, IIT Kanpur & Steering Committee Member, National Clean Air Programme, India.