Daily Current Affairs 29.11.2022 (Anguish over NJAC order behind posting delays: SC, Why was Google sued for its location tracking practices?, In India, calls for looking beyond the binary are growing stronger, Still a nightmare for domestic violence survivors, Loss and Damage decisions pitfalls and promises, Same rights)

Daily Current Affairs 29.11.2022 (Anguish over NJAC order behind posting delays: SC, Why was Google sued for its location tracking practices?, In India, calls for looking beyond the binary are growing stronger, Still a nightmare for domestic violence survivors, Loss and Damage decisions pitfalls and promises, Same rights)


1. Anguish over NJAC order behind posting delays: SC

Supreme Court had struck down the National Judicial Appointments Commission, which gave the government an equal say in judicial appointments to the constitutional courts, in 2015

The Supreme Court on Monday linked the bitter failure of the National Judicial Appointments Commission (NJAC) to the government’s willingness to “cross some Rubicons” and take on the judiciary by delaying Collegium recommendations.

The top court had struck down the NJAC, which gave the government an equal say in judicial appointments, in 2015. The judgment had revived the Collegium system of judicial appointments.

“There appears to be an unhappiness in the government of the fact that NJAC did not muster the constitutional mandate… That cannot be the reason to not comply with the law of the land,” a Bench of Justices Sanjay Kishan Kaul and A.S. Oka.

The hearing coincided with a fresh salvo from Law Minister Kiren Rijiju, a relentless critic of the Collegium system. Mr. Rijiju, in an interview, reportedly dared the judiciary to “issue its own notifications” of appointments if it thought the government was sitting on Collegium recommendations.

“Let them give the power to us then, we have no difficulty… When somebody high up says ‘let them do it’, we will do it ourselves… This [Rijiju’s remarks] came from somebody high enough, it should not have,” Justice Kaul shot back when apprised of the Law Minister’s comments by the Supreme Court Bar Association president, senior advocate Vikas Singh, in court.

The hearing on Monday marked a new high in the tensions simmering for the past few weeks between the judiciary and the government over appointments. Mr. Rijiju has been criticising the Collegium system in several public fora. The court had responded by accusing the government of using silence and inaction as a ploy to compel the withdrawal of consent by eminent persons considered for judgeships in the constitutional courts. On Monday, Justice Kaul told Attorney-General R. Venkataramani that the government was “effectively frustrating the method of appointment”. Names have been pending for a year and a half. Some of them had been originally recommended way back in 2019 and still not cleared by a government which remains incommunicado. The court accused the government of picking and choosing names from the Collegium list. “What happens is this completely destroys the seniority. The Collegium while sending names keeps many factors in mind,” Justice Kaul said. The court said it was plainly “anguished” by the government’s attitude. “It [government] is crossing some Rubicons by keeping these names pending like this… It cannot go on like this… We went on thinking that things will improve, that it will improve… But for the past two months, everything has come to a complete standstill, whether it is appointments to the High Courts or to the Supreme Court,” Justice Kaul observed. The court said 20% of the judicial posts in High Courts were vacant. Justice Kaul said Chief Justices of several High Courts have complained about lawyers unwilling to accept invitations to the Bench because of the uncertainty posed by the government’s inaction. Mr. Singh said the court should issue contempt notice against the government.

“There is no need to be rhetorical,” the A-G snapped.

“What rhetorical? Are you saying following the law of the land is rhetoric?” Mr. Singh asked.

“We kept our patience today because the A-G appeared… Timelines [for judicial appointments] have gone completely haywire, there have been many aggravating circumstances after that… Don’t make us take decisions on the judicial side on this,” Justice Kaul and Oka said told Mr. Venkataramani.

Appointment of Supreme Court Judges

The Constitution of India – Article 124Establishment and constitution of Supreme Court say that:

  • There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.
  • Every Judge of the Supreme Court shall be appointed by the President by warrant under his/her hand and seal after consultation with such of the Judges of the Supreme Court and of the High Court in the States as President may deem necessary for the purpose and shall hold office until he attains the age of 65 years.
  • In judicial appointments, it is obligatory for the President to take into account the opinion of the Chief Justice of India.
  • The opinion of the Chief Justice of India is binding on the Government. The opinion of the CJI must be formed after due consultation with a collegium of at least four senior-most judges of the Supreme Court.
  • Even if two judges give an adverse opinion, then he should not send the recommendation to the Government.

Timeline for changes in the appointment procedures

After independence, India adopted the Constitution in 1950. According to the Constitution, up to 1973, the President appointed the Chief Justice of India and remaining judges of the Supreme Court in consultation with the CJI and other judges as he deemed necessary.

1. Appointment of CJI 1950-1973

  • Until 1973, there existed a consensus between the Government of the day and the Chief Justice of India.
  • A convention was formed where the senior-most judge of the Supreme Court was to be appointed as the Chief Justice of India.
  • In 1973, A.N.Ray was appointed as the Chief Justice of India. This violated the convention formed earlier since Justice A.N.Ray superseded three other Supreme Court judges senior to him.
  • Again in 1977, another chief justice was appointed who superseded his seniors.
  • This resulted in a clash between the Executive and the Judiciary.

2. First judges case, 1982

  • A petition was filed in 1982 in the Supreme Court of India.
  • This case is known as the S.P.Gupta Case or First Judges case.
  • The Supreme Court discussed 2 major points during the proceedings of this case
  • When asked the Supreme Court of India whether the word “consultation” in the constitutional article 124 mean “concurrence”; the Supreme court overruled this and denied saying that Consultation does not mean concurrence. The President was not bound to make a decision based on the consultation of the Supreme Court.
  • Another important point in the discussion, in this case, was the part where the Supreme Court decided that a High Court Judge can be transferred to any other high court of a state even against his will.

3. Second judges case, 1993

  • Another petition was filed in 1993 by the Supreme Court Advocates on Record Association (SCARA).
  • In this case, the Supreme Court overruled its earlier verdict and changed the meaning of consultation to concurrence. Thus binding the President of India with the consultations of the Chief justice of India. 
  • This resulted in the birth of the Collegium System.

4. Third Judges Case, 1998

  • In the year 1998, the presidential reference to the Supreme court was issued questioning the meaning of the word consultation in articles 124, 217, and 222 of the Constitution.
  • The chief justice won’t be the only one as a part of the consultation process. Consultation would include a collegium of 4 senior-most judges of the Supreme court. Even if 2 of the judges are against the opinion, the CJI will not recommend it to the government.

The gist of the Third Judges case:

Appointment of Supreme Court JudgeAppointment of High Court JudgeTransfer of High Court Judge
senior-most judges of the Supreme courtsenior-most judges of the Supreme courtsenior-most judges of the Supreme court along with the judges of the two High Courts in concern. 

 In the verdict, the Supreme Court laid down strict guidelines for the appointment of Judges of the Supreme Court and high courts which is currently known as the Collegium System.

5. Collegium System

  • In this system of appointment of Judges, the collegium will recommend the names of the candidates to the Central Government.
  • Also, the central government will send the names of the proposed candidates for consultation.
  • The appointment process takes a long time since there isn’t a fixed time limit for it. If the Collegium resends the same name again then the government has to give its assent to the names.

The Collegium System faced a lot of criticism not only from the government but also from civil society due to its Lack of Transparency and Accountability.

This led to the 99th Constitutional Amendment Act, 2014 the National Judicial Commission Act (NJAC) to replace the collegium system for the appointment of judges.

6. National Judicial Appointment Commission Act, 2014

  • The 1993 judgment was the basis on which a five-judge Constitution Bench declared the National Judicial Appointments Commission Act (NJAC) and the Constitutional (Ninety-Nine Amendment) Act, 2014 unconstitutional in October 2015.
  • NJAC too would recommend names for the  Appointment of Supreme Court Judge and Appointment and Transfer of High Court Judge 
  • Composition of NJAC
    1. The Chief Justice of India
    2. 2 senior-most judges of the Supreme Court
    3. The Law Minister of India
    4. 2 eminent members that are chosen by the Selection Committee

National Judicial Appointments Commission – NJAC

The aspirants should note that NJAC was established to achieve greater transparency and accountability for the appointment of judges. But it was struck down by the Supreme Court on the grounds that it was against the “Independence of Judiciary” i.e Principles of Basic Structure since it involved the Political Executive in the appointment of Judges.

The current system of appointment of SC judges

  • In judicial appointments, it is obligatory for the President to take into account the opinion of the CJI.
  • The opinion of the CJI is binding on the Government. The opinion of the CJI must be formed after due consultation with a collegium of at least four senior-most judges of the Supreme Court.
  • Even if two judges give an adverse opinion, then he should not send the recommendation to the Government.

2. Why was Google sued for its location tracking practices?

How did Google’s settlement with the Attorney-Generals of 40 U.S. States make history? How is the tech giant planning to improve its privacy features with respect to location tracking disclosures?

On November 14, Google reached an agreement with the Attorney-Generals of 40 U.S. States to pay a historic $391.5 million settlement, over its location tracking practices, Associated Press reported. The multi-million dollar settlement, which was led by Oregon AG Ellen Rosenblum and Nebraska AG Doug Peterson, is the largest attorney general-led consumer privacy settlement.

What is the lawsuit about?

Google was found to violate state consumer protection laws by misleading its users about its location tracking practices since at least 2014. The company misled consumers into thinking they had turned off location tracking, when, in fact, the company continued to collect their location information and use that for advertising. “They have been crafty and deceptive,” Oregon Attorney-General Rosenblum said in a release. “For years Google has prioritised profit over their users’ privacy,” she added. Location data is a key part of Google’s digital advertising business. The company uses the personal andbehavioural data it collects to build detailed user profiles and target them with ads. In fact, location data is among the most sensitive and valuable personal information Google collects. Even a limited amount of location data can expose a person’s identity, routines, and can be used to infer personal details, the release noted.

When was it sued?

The states’ investigation was triggered by an Associated Press story in 2018, which found that Google continued to track people’s location data even after they turned off location tracking by disabling a feature called “location history.” Arizona Attorney-General Mark Brnovich filed the first state action against Google in May 2020 when he slammed the company for misleading its users. Google settled the case with Arizona for $85 million last month. Yet by then, Attorney-Generals of other states and the District of Columbia filed their individual lawsuits against the search giant for deceiving users.

What does this mean for Google?

As part of the settlement, Google has agreed to significantly improve its location tracking disclosures and user controls starting next year. The company has also been asked to be more transparent about its practices. Google must show additional information to users whenever they turn a location-related account setting ‘on’ or ‘off’. The company is not allowed to hide any key information about location tracking to its users and it must give them details about the types of location data it collects and how it is used, at an enhanced “Location Technologies” webpage.

Will Google make any changes?

The company is creating a single, comprehensive information hub to highlight key location settings and help people make informed choices about their data. Google will put additional disclosures on their Activity controls and Data & Privacy pages. “We will be making updates in the coming months to provide even greater controls and transparency over location data,” Google said in a blog post. The search giant will also allow its users to easily turn off their Location History and Web & App Activity settings and delete their past data. The company will continue to delete Location History data for users who have not recently contributed new Location History data to their account. For users setting up new accounts, the company will provide a more detailed explanation of what Web & App Activity is, what information it includes, and how it helps their Google experience, the company said in the blog.

3. In India, calls for looking beyond the binary are growing stronger

A delay in the provision of marriage rights to same-sex couples would fall foul of constitutional guarantees and judgments. It is time that India reviews its existing legal architecture in order to legalise marriages irrespective of gender identity and sexual orientation

The Supreme Court on November 25 sought the government’s response to pleas to allow solemnisation of same-sex marriage under the Special Marriage Act, 1954. In this article dated June 19, 2021, Manuraj Shunmugasundaram elaborates on the international precedents for same-sex marriage and calls for expanding the scope of marriage to include members of the LGBTQIA+ community.

Last month, when the cases surrounding the question of same-sex marriages came up before the High Court of Delhi, the Union Government was found to be dithering. The Solicitor General of India made himself available only to request the court to have the matter adjourned on the ground that it was not urgent. Though the Union Government argued that the matter was not important in the context of the second wave of COVID-19 cases, it overlooked the basic notion that the plight of persons in same-sex and queer relationships looking after each other — without the legal protection of marital relationships — was exacerbated by the pandemic. In any case, it is a matter of some concern that the Union Government does not find urgency in a matter of extending civil rights to a class of persons who have approached a constitutional court. Nevertheless, given the march of law — both international and domestic — in the direction of expanding human rights, jurisprudence necessarily means that the provision of marriage rights to same-sex and queer couples is only a matter of time. Any further delay in doing so would fall foul of our constitutional guarantees, judgments rendered by various High Courts and evolving international jurisprudence. The last two decades have witnessed tremendous progress in establishing civil rights for the LGBTQIA+ community.

International jurisprudence

In 2005, the Constitutional Court of South Africa in the case of Minister of Home Affairs and Another vs Fourie and Another; Lesbian and Gay Equality Project and Eighteen Others vs Minister of Home Affairs and Others [2005] ZACC 19 , unanimously held that the common law definition of marriage i.e. “a union of one man with one woman” was inconsistent with the Constitution of the Republic of South Africa, 1996. Consequently, the Parliament of South Africa was given 12 months to amend the Marriage Act 25 of 1961, failing which the Marriage Act would stand amended, by virtue of the decision of the Constitutional Court, to include the words “or spouse” after the words “or husband”. As a result of the verdict, the Civil Union Act, 2006 was enacted, enabling the voluntary union of two persons above 18 years of age, by way of marriage.

In 2007 in Australia, the reforms to civil rights of queer community were prompted by the Honourable Michael Kirby (then judge of the High Court of Australia) writing to the Attorney-General of Australia asking for the judicial pension scheme to be extended to his gay partner of 38 years (at that time). After initial opposition from the Federal Government, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 came to be enacted to provide provide equal entitlements for same-sex couples in matters of, inter alia , social security, employment and taxation.

Similarly, in England and Wales, the Marriage (Same Sex Couples) Act 2013 enabled same-sex couples to marry in civil ceremonies or with religious rites.

More recently, in 2015, the Supreme Court of the United States decided that the fundamental right to marry is guaranteed to same-sex couples. The case of Obergefell vs Hodges ushered in a landmark shift in the American position and allowing same-sex marriages to be recognised and treated on a par with opposite-sex marriages.

While doing so, the Supreme Court of the United States held the denial of marriage rights to same-sex couples to be a “grave and continuing harm, serving to disrespect and subordinate gays and lesbians”. Across the world, the recognition of the unequal laws discriminating against the LGBTQIA+ community has acted as a trigger to reform and modernise legal architecture to become more inclusive and equal.

Courts and civil rights

In India, marriages solemnised under personal laws such as the Hindu Marriage Act, 1955 , Indian Christian Marriage Act, 1872 , Muslim Personal Law (Shariat) Application Act, 1937 and so on. At present, though same-sex and queer marriages are not clearly recognised in India, we are not bereft of judicial guidance.

In the case of Arunkumar and Sreeja vs The Inspector General of Registration and Ors. [W.P.(MD)No. 4125 of 2019 & W.P.(MD)No. 3220 of 2019], the Madurai Bench of the High Court of Madras employed a beneficial and purposive interpretation holding that the term ‘bride’ under the Hindu Marriage Act, 1955 includes transwomen and intersex persons identifying as women. Therefore, a marriage solemnised between a male and a transwoman, both professing the Hindu religion, is deemed to be a valid marriage under the Act. The import of this judgment cannot be overstated as it expands the scope of a term used in the Hindu Marriage Act, 1955 in a progressive manner and sets the stage for re-imagining marriage rights of the LGBTQIA+ community.

The judgment of the Madras High Court builds on the tenets laid down by the Supreme Court of India in Shafin Jahan vs Asokan K.M. and Others AIR 2018 SC 1933 (Hadiya case), wherein the right to choose and marry a partner was considered to be a constitutionally guaranteed freedom. By doing so, the Supreme Court held that the “intimacies of marriage lie within a core zone of privacy, which is inviolable” and that “society has no role to play in determining our choice of partners”.

The only logical interpretation from reading these cases together, it is apparent that any legal or statutory bar to same-sex and queer marriages must necessarily be held to be unconstitutional and specifically violative of Articles 14, 15 and 21 of the Constitution of India. No longer can the position of the Union Government that marriage is a bond between “a biological man and a biological woman” be tenable.

Expanding scope of marriage

The domain of marriages, including religious marriages, cannot be immune to reform and review. Self-respect marriages were legalised in Tamil Nadu (and subsequently, in Puducherry) through amendments to the Hindu Marriage Act, 1955.

Self-respect marriages, commonly conducted among those who are part of the Dravidian Movement, have done away with priests and religious symbols such as fire or saptapadi . Instead, solemnisation of self-respect marriages only requires an exchange of rings or garlands or tying of the mangalsutra. Such reform of the Hindu Marriage Act, 1955 to bring self-respect marriages under its very umbrella, is seen as a strong move towards breaking caste-based practices within the institution of marriage.

Similarly, understanding the needs of the LGBTQIA+ community today, the law must now expand the institution of marriage to include all gender and sexual identities.

At least 29 countries in the world have legalised same-sex marriage.

It is time that India thinks beyond the binary and reviews its existing legal architecture in order to legalise marriages irrespective of gender identity and sexual orientation.

4. Editorial-1: Still a nightmare for domestic violence survivors

Domestic Violence

Just ahead of the International Day for Elimination of All Forms of Violence against Women (November 25), the brutal murder and mutilation of a young woman by her partner has drawn attention to intimate partner violence, also recognised under the Protection of Women from Domestic Violence Act 2005 (PWDVA) as a kind of domestic violence. Many questions are being raised. Why did she choose him? Why did she not leave? As evidence of her help-seeking efforts surface, we should also be asking this: why were these not effective?

Domestic violence is a punishable offence under Indian law. It is a violation of human rights. Yet, the latest round of the National Family Health Survey-5 (2019-21) reveals that we live in a society where violence against women persists to such an extent that 32% of ever-married women aged 18-49 years have ever experienced emotional, physical, or sexual violence committed by their husband, with more rural than urban women reporting experiences of domestic violence. This does not even capture the prevalence of violence by other family members too.

Over 17 years ago the PWDVA, a progressive legislation, was passed, promising a joined-up approach — involving civil and criminal protections — to support and protect women from violence within the household, not just from husbands. But despite the law existing on paper, women are still largely unable to access the law in practice. Its promise and provisions are unevenly implemented, unavailable and out of reach for most Indian women.

The most disheartening reality is that despite almost a third of women being subject to domestic violence, the National Family Health Survey-5 (2019-21) reports that only 14% of women who have experienced domestic violence have ever sought help; and this number is much lower in the rural areas. In a country where domestic violence is a crime, where there are multiple laws explicitly designed to protect women against violence, why is it that most women survivors of domestic violence never seek help?

Questions and responses

Our research in Maharashtra, West Bengal and Tamil Nadu aims to better understand ‘help seeking’ and the everyday realities, obstacles, prejudices and fears that women experience around sharing and reporting experiences of violence. Simple and well-meaning questions — “Why didn’t you leave earlier?” “Why didn’t you tell someone about the violence earlier?” — can have the most complicated and contradictory responses.

Women were hopeful that things would change, that they could change their husband’s behaviour, that he would listen to them. Crucially women did not want to be a ‘burden’ on others, in particular their families. ‘My mother has a lot of worries, she has her own life so I didn’t want to add to her own worries, with mine.’ By naming the violence they experienced, women believed that they would become ‘a problem’ or a source of ‘tension’ for their families, in bringing them shame and dishonour, irrespective of the survivor’s level of education, caste, or class. For migrant women, transpeople or those with several sisters, or ill, older or deceased parents, it was felt even more acutely that the perpetrator’s violence was their individual responsibility to manage.

On seeking help

When it comes to help seeking, we found two main groups of women — those who shared experiences of violence within six months, and those who shared after five years or more. The first group of women mainly turned to their parents who, in a majority of cases, insisted on their daughter preserving the family environment which they should do by ‘adjusting’ to, or accommodating their husband’s (and his family’s) needs better. In a minority of cases, the daughter’s welfare was prioritised over the well-being of the ‘the family’ and steps were taken to help mediate or exit the relationship, and much more infrequently approach the police and lawyers.

For survivors who took longer to seek help, the actions of relatives or neighbours who witnessed the violence were often pivotal in transforming their situations. So were key ‘turning’ or ‘tipping’ points such as a survivor’s heightened concerns for their children’s safety, the discovery of a husband’s affair or when violence became “too much” and required medical assistance. Waiting until such a point before seeking help was more likely for survivors who struggled to imagine exiting a relationship due to financial insecurity and/or patriarchal norms concerning property ownership.

So ingrained are social norms about gender inequality that NFHS-5 data reports that women are more likely than men to justify a scenario in which it is acceptable for a husband to beat or hit his wife. As one interviewee explained, ‘the way we are conditioned, it was hard to complain about any suffering’. Though survivors who did (finally) confide in relatives and friends about domestic violence described feeling a ‘sense of a relief’ and that a ‘burden had been lifted’, giving them new ‘hope’ that things might change.

Whilst sharing experiences of violence was an incredibly powerful step for women, actually transforming their violent domestic experiences and accessing services and support provided by the state and non-state actors proved to be an arduous roller coaster of emotions, promises, uncertainty, fear and disappointment. With few safe houses across India, the simple reality was that many women have nowhere else to go, and access to legal justice through the courts was a material possibility only for women with independent wealth and connections or those supported by specialist non-governmental organisations.

So, for many survivors, transforming their situation depended on securing their economic self-sufficiency by pursuing new skills and livelihood opportunities.

Role of the police

Women who reported experiences of violence to the police were cynical about the outcome. Though a small minority had positive experiences, for the majority of those we interviewed, the police were part of the problem rather than a solution to violence. Across the States, we heard that the police were more likely to send women back to violent households to reconcile with the perpetrator or use violence against perpetrators as a deterrent instead of filing an official complaint or connecting women to protection officers and other service providers, as the PWDVA outlines they should. Several States are yet to implement Protection officers. And where they are in post, they are under resourced, under-skilled and overworked, making their remit impossible.

While sharing experiences of violence was a powerful step for women, accessing services and support often resulted in uncertainty, fear and disappointment.

Women know all too well that the state serves patriarchal and heteronormative interests first. The state is failing women. Even whilst its legislature recognises that domestic violence is a crime, and civil remedies exist through protection orders, managing the fallout of domestic violence is still being subcontracted to survivors and the family. That is the biggest crime being committed against women today.

5. Editorial-2: Loss and Damage decisions, pitfalls and promises

A major takeaway from COP27 in Egypt, as far as loss and damage (L and D) is concerned, is the decision relating to new funding arrangements focusing on L and D — those particularly vulnerable to the adverse effects of climate change.

The decision includes a transitional committee to prepare elements relating to the operationalisation of the new funding arrangements to be adopted at COP28. The decision restores the faith of countries, especially those vulnerable, in the process of multilateralism. The committee will aim to identify and expand sources of funding, which demonstrates a lack of clarity on the source of funding (adequate and predictable) accruing to the new fund only. There is a question mark over the new L and D fund with non-compliance by developed countries as far as climate finance commitment (mobilising $100 billion per year by 2020) is concerned. The new funding arrangements will complement the existing arrangements and include sources, funds, processes and initiatives under and outside the Convention and the Paris Agreement, which would assist in mobilising new and additional resources. This dilutes the consistent demand raised at COP27, and outside of it by the Alliance of Small Island States (AOSIS) to set up a dedicated loss and damage response fund, which would be on top of existing climate finance commitments.

The decision again recognises the mitigation-centric nature of the history of climate change negotiations to be suiting the agenda of developed countries. It says restricting the global average temperature rise to below 1.5° Celsius is essential to limiting future loss and damage.

The mitigation-centric nature of the negotiation can be traced to Article 2 of the United Nations Framework Convention on Climate Change (UNFCCC) 1992. Adaptation as the second pillar of the climate change regime is possible once ‘stabilisation of greenhouse gas concentrations is achieved at a level that prevents dangerous human-induced interference with the climate system and allows ecosystems to adapt naturally to climate change’. L and D could gain traction after two decades of climate change negotiations at Paris 2015. Article 8(1) only makes the party recognise the importance of averting, minimising, and addressing L and D associated with the adverse effects of climate change, including extreme weather events and slow onset events.

Past, present and the future

In the entire climate change negotiations, the developed countries have consistently opposed being made liable for climate-change related adverse effects. The basis for their contribution to various funds so far is the principle of common but differentiated responsibilities and respective capabilities (CBDR). For global environmental degradation, they only acknowledge their responsibility in view of the pressures their societies place on the environment and of the technologies and financial resources they command, according to research papers.

The compensation aspect involves a serious legal hurdle of establishing causal relations between the injurer and the victim since the adverse effects of climate change occur substantially later than the greenhouse gas emissions that cause them. During the negotiation process for the UNFCCC in 1991, AOSIS, which is at the forefront for the cause of loss and damage, “unsuccessfully” tried to include the establishment of an international insurance pool as a ‘collective loss-sharing scheme to compensate the most vulnerable small island and low-lying coastal developing countries for loss and damage arising from sea level rise’. Funding was to come from assessed contributions according to a ‘formula modelled on the 1963 Brussels Convention Supplementary to the Paris Convention on Third Party Liability in the Field of Nuclear Energy, with 50% based on parties’ relative contributions to emissions in the year prior to a contribution year, and 50% based on parties’ relative shares of gross national product in the year prior to the contribution year’.

Taxing fossil fuel firms

The realisation of the 1991 proposal would have addressed at least who pays for the L and D. But the concept of an international insurance pool requires more research and deliberation amongst major emitters in developed and developing countries. In Egypt, AOSIS, instead of insisting on an international insurance pool, demanded a dedicated L and D Response Fund. It wanted funding from governments on a grant basis, which would be on top of existing climate finance commitments. The fund would also draw upon other potential sources, which include, as UN Chief Antonio Guterres advocates, a windfall tax on oil and gas companies’ profits. The idea of taxing fossil fuel oil and gas companies needs more research as it indicates an alternative to the nation-state approach of climate change negotiations. The idea highlights that ‘substantial emissions have come from fossil fuels sourced from non-Annex I countries such as China, India, Saudi Arabia, South Africa, Iran, Brazil, and Mexico, and from nations that are not large-scale emitters, such as Nigeria, Venezuela, Kuwait, Angola, Malaysia, and Libya’.

The German-backed “Global Shield Scheme against climate risks”, is a part of COP27’s decision. The Shield is aimed at increasing pre-arranged finance to be disbursed before or just after disasters happen. The AOSIS favours a dedicated L and D response fund which would help disburse funding from different propositions, including the Global Shield, and avoid a piecemeal approach. The other probable avenues to address L and D are litigation, but the issues of causation, attribution and standing appear to be potential obstacles, at the domestic and international levels.

6. Editorial-3: Same rights

As relationships change, rights on freedoms and liberties must expand

The Supreme Court has sought the Government’s response to appeals to allow same-sex marriage under a special law, in another bid to provide legal sanction to widening social customs. A Bench of CJI D.Y. Chandrachud and Justice Hima Kohli agreed to hear two partners who said the non-recognition of same-sex marriage amounted to discrimination that struck at the rights of LGBTQIA+ couples. The petitioners cited the Special Marriage Act, 1954, which provides a civil marriage for couples who cannot marry under their personal law. Listing the case for hearing, the Court also transferred cases pending before several High Courts to itself. It is a first step towards same-sex marriage, which has been legalised in 30-odd countries, including the U.S. where this July the House of Representatives approved legislation to protect such marriages. This legislative action came amidst concern that an aggressive Supreme Court could revisit settled laws after it overturned Roe vs Wade on abortion rights. After the K.S. Puttaswamy verdict (2017) which upheld the right to privacy and Navtej Singh Johar (2018) that decriminalised homosexuality, there was hope that same-sex marriages would follow, but that has not been the case. At depositions in courts and outside, the Centre has opposed same-sex marriage, and said judicial interference will cause “complete havoc with the delicate balance of personal laws”.

This is perhaps one of the reasons why the Supreme Court may consider allowing same-sex marriage under the Special Marriage Act, and not several other personal laws such as the Hindu Marriage Act. Over the past few years, it has passed a series of judgments that challenged conservative society and brought hope and expanded the scope for people who do not conform to age-old social norms. Eventually though, even if the Court rules in its favour, the march towards equality for the LGBTQIA+ community will be long and arduous. Enforcing something like same-sex marriage in a diverse country with varying customs and traditions will not be easy. Social mindsets are conservative and so well-entrenched that anyone who feels differently is stigmatised, humiliated and ostracised. Together with the Court, more needs to be done at the societal level to chip away at conservative views on sex, gender, women and the LGBTQIA+ community. Alongside the call for legalising same-sex marriage, activists have been seeking the extension of the benefits of a traditional marriage to same-sex couples, including the right to adopt children. As people’s relationships change, and society undergoes transformation, constitutional rights on freedoms and liberties must extend to every sphere, including a same-sex couple’s life.

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