20 and 21 Apr 2016

Compensatory Afforestation Fund Bill, 2015

Background:-

The Union Cabinet chaired by the Prime Minister   gave its approval to move official amendments in the Compensatory Afforestation Fund Bill, 2015.

Details :-

While according prior approval under the Forest (Conservation) Act, 1980 for diversion of forest land for non-forest purpose, Central Government stipulates conditions that amounts shall be realised from the user agencies to undertake compensatory afforestation and such other activities related to conservation and development of forests, to mitigate impact of diversion of forest land.

In compliance of Orders passed by the Hon’ble Supreme Court these amounts are deposited in the State-wise accounts operated by an Ad-hoc Authority consisting of two officials of the Ministry of Environment, Forests and Climate Change one representative of the Comptroller and Auditor General and one representative of the Chairperson of the Central Empowered Committee.

In the absence of permanent institutional mechanism more than Rs.40,000 crores have accumulated with the said ad-hoc Body.

In order to provide for the establishment of funds under the public accounts of India and the public accounts of each State and crediting thereto the monies received from the user agencies towards compensatory afforestation, additional compensatory afforestation, penal compensatory afforestation, net present value and all other amounts recovered from such agencies under the Forest (Conservation) Act, 1980 Central Government introduced the Compensatory Afforestation Fund Bill, 2015 in the Lok Sabha on 8th May 2015.

The Bill also provides for constitution of an authority at national level and at each of the State and Union territory Administration for administration of the funds and to utilise the monies so collected for undertaking artificial regeneration (plantations), assisted natural regeneration, protection of forests, forest related infrastructure development, Green India Programme, wildlife protection and other related activities and for matters connected therewith or incidental thereto.

On 13th May, 2015 Lok Sabha referred the Bill to the Department-related Parliamentary Standing Committee on Science & Technology, Environment & Forests. On 26th February, 2016 the Committee submitted its report to the Parliament. The Central Government after examination of the report of the Department-related Parliamentary Committee propose to move official amendments in the Bill.

Proposed Amendments:-

1. Bill to make the list of environmental services inclusive and to delete some of environmental services for which credible model to assess their monetary value does not exist.
2. Bill to provide for prior consultation with States Governments for making rule under the new legislation.
3. Bill to provide for establishment of State Fund of a Union territory having no legislature under Public Account of the Union of India.
4. Bill to provide for use of monies realised from the user agencies in lieu for forest land diverted in protected areas for voluntary relocation from protected areas.
5. Bill to include Secretaries of Ministries dealing with Space and Earth Sciences as members of governing body of the National Authority.
6. Bill to increase the number of expert members in governing body of National Authority from two to five.
7. Bill to increase the number of expert members in executive committee of National Authority from two to three.
8. Bill to include an expert on tribal matters or representative of tribal community as a member in both steering committee and executive committee of a State Authority.
9. Bill to fix time limit of three months for Executive Committee of National Authority to approval annual plan of operations of State Authorities and to empower Executive Committee Of National Authorities to make amendments in annul plan of operations of State Authorities.
10. Bill to provide for laying of the annual report and the audit report along with memorandum of action taken on recommendations contained therein of State Authority constituted in Union Territories having no legislature before each house of the Parliament.

Cabinet approves signing the Paris Agreement

The Paris Agreement on climate change is a milestone in global climate cooperation. It is meant to enhance the implementation of the Convention and recognizes the principles of equity and common but differentiated responsibilities and respective capabilities in the light of different national circumstances.

The salient features of the Paris Agreement are as follows:

a) The Paris Agreement acknowledges the development imperatives of developing countries. The Agreement recognizes the developing countries’ right to development and their efforts to harmonize development with environment, while protecting the interests of the most vulnerable.

b) The Paris Agreement recognizes the importance of sustainable lifestyles and sustainable patterns of consumption with developed countries taking the lead, and notes the importance of ‘climate justice’ in its preamble.

c) The Agreement seeks to enhance the ‘implementation of the Convention’ whilst reflecting the principles of equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.

d) The objective of the Agreement further ensures that it is not mitigation-centric and includes other important elements such as adaptation, loss and damage, finance, technology, capacity building and transparency of action and support.

e) Pre-2020 actions are also part of the decisions. The developed country parties are urged to scale up their level of financial support with a complete road map to achieve the goal of jointly providing US $ 100 billion by 2020 for mitigation and adaptation by significantly increasing adaptation finance from current levels and to further provide appropriate technology and capacity building support.

India had advocated a strong and durable climate agreement based on the principles and provisions of the Convention. The Paris Agreement addresses all the important concerns and expectations of India.

Diffusing the judicial burden:-

The Supreme Court’s request to the Central government to consider the possibility of establishing a National Court of Appeal has elicited mixed reactions from the legal community. Bodies such as the Law Commission of India have given their considered opinion, and from these a solution must emerge.

The issue relates to access to justice, that is at the core of our constitutional values, and thus problems related to the issue have to be understood in their entirety and possible solutions must be deliberated upon and discussed by all stakeholders. The problem is essentially threefold.

The Supreme Court was meant to be a Constitutional Court. However, the sheer weight of its case backlog leaves the court with little time for its primal functions. In spite of recently accelerated rates of case disposal in the Supreme Court (in 2015 it disposed of 47,424 cases compared to 45,042 in 2014 and 40,189 in 2013), the backlog was still a staggering 59,468 cases as of February 2016.

A ‘substantial question’ of constitutional law has to be heard by five or more judges. According to a study by Nick Robinson titled “A Quantitative Analysis of the Indian Supreme Court’s workload”, in the 1960s it was common for the court to decide over 100 such cases a year. He points out that in the past decade, because of the unreasonable workload borne by the court, the average is now fewer than eight constitution benches a year. In effect, therefore, the functions of the Supreme Court as a Constitutional Court have been seriously impaired.

Ease of access

Geographical proximity to the court is definitely an aspect of access to justice. The fact that the Supreme Court sits only in New Delhi limits accessibility to litigants from south India. Mr. Robinson’s study reveals that of all the cases filed in the Supreme Court, the highest numbers are from high courts in the northern States: 12 per cent from Delhi, 8.9 per cent from Punjab and Haryana, 7 per cent from Uttarakhand, 4.3 per cent from Himachal Pradesh, etc. The lowest figures are from the southern high courts: Kerala 2.5 per cent, Andhra Pradesh 2.8 per cent, Karnataka 2.2 per cent and a mere 1.1 per cent from Madras High Court. There is therefore an urgent need to find a solution to such an inequitable state of affairs.

The Supreme Court, it must be acknowledged, has played its role as sentinel qui vive of the Constitution with aplomb. This does not, naturally, go down well with the other organs of the state and while their present proclivity to abide by the orders of the Supreme Court is creditable, it is but natural that attempts may be made to curtail the constitutional powers of the court. The problem of backlog may be a convenient handle for the other organs of the state to seek drastic curtailment of the court’s powers. Well-regarded leaders in stable democracies have attempted this in the past.

Franklin D. Roosevelt saw nothing amiss in using his presidential powers to attempt to ‘reorganise’ the American Supreme Court when it consistently dealt death blows to many of the legislations brought in under the rubric of the New Deal. The pendency of cases before the Supreme Court was at that time cited as the ostensible reason for the ‘reorganisation’ plans. In pursuance of the same, Senators William H. King and Warren Austin called upon Chief Justice Charles Evans Hughes to appear as a witness in the Senate hearing and to outline the court’s ability to deal with its docket. Chief Justice Hughes refused, and instead sent a note which ultimately played an important role in thwarting the President’s plan to reorganise the court.

An institution which on a daily basis hauls up several other bodies for defects and deficiencies must place itself well above criticism of any nature. It is only such an unassailable stature that can add to its effective functioning.

A reasoned solution

In considering the issues posed by the Supreme Court to it, the Central government has a rich repository of information which it must refer to in order to reach a well-reasoned decision. The 229th report of the Law Commission of India delved into this problem in depth and came up with the suggestion of retaining the New Delhi bench of the Supreme Court as a Constitutional Court and the establishment of Cassation Benches of the Supreme Court in the four regions at New Delhi, Chennai/Hyderabad, Kolkata and Mumbai. The 2009 report pointed out that since Article 130 of the Constitution provides that “the Supreme Court shall sit in Delhi or such other place or places as the Chief Justice of India may with the approval of the President, from time to time, appoint”, the creation of Cassation Benches of the Supreme Court would require no constitutional amendment. It also pointed out how this basic model with appropriate variations has worked very successfully in countries such as Italy, Egypt, Ireland, the U.S. and Denmark.

In coming to its conclusions and recommendations the report had also made extensive reference to the 95th report of the Law Commission titled “Constitutional Division within the Supreme Court — A proposal for”; the 125th Law Commission report titled “The Supreme Court — A Fresh Look”; reports of the parliamentary standing committee on personnel, public grievances, law and justice as also the 120th report of the Law Commission on “Manpower planning in judiciary”.

In addition to the above, Mr. Robinson’s report referred to earlier is also available to guide the deliberations of the government.

The Supreme Court has earlier rejected suggestions to have benches of the Supreme Court in other parts of the country. Given this fact, it is imperative we look at other options to the problem and seriously debate the possibilities. The solution may not even be the National Court of Appeal but a completely different idea which emerges during the course of deliberations and is found acceptable to the government, the Supreme Court and the stakeholders. It is, however, important that whatever may be the consensus, it must find a solution to the problems mentioned earlier.

As the saying goes, if we do not do something because it has never been done before, we will go nowhere. The law will stagnate while society advances, which is not good for both.

Most of rural India still opts for open defecation: NSS report

According to recently released Swachhta Status Report by the National Sample Survey (NSS) Office, more than half the rural population of the country still opts for open defecation.

Highlights of the survey:

• The survey estimates that 52.1% of people in rural India choose open defecation compared to 7.5% in urban India.
• Only 45.3% rural households have a sanitary toilet, while in urban areas, the figure stands at 88.8%.
• The lowest percentage of households having sanitary toilets was reported in Jharkhand (18.8%), Chhattisgarh (21.2%) and Odisha (26.3%).
• The States with the highest numbers were Sikkim (98.2%), Kerala (97.6%) and Mizoram (96.2 %).
• 1% of the villages and 42% urban wards have community toilets. However, they were not being used in 1.7% villages and 1.6% urban wards. Also, in 22.6% of the villages and 8.6% urban wards, community toilets were not being cleaned.
• While 87.9% of the urban households were found to have access to water for use in toilets, only 42.5% rural households had this facility. For this situation to improve, under Swachh Bharat Mission (Gramin), the incentive for individual toilet has been increased from Rs. 10,000 to Rs. 12,000, to provide for water, including for storing water for hand-washing and cleaning.

Why open defecation is still rampant?

The main reason for open defecation is behaviour and mindset of the people who have continued the practice for centuries. Adequate availability of water for toilets is also a concern.

Performance of Swachh Bharat Mission (Gramin):

Since the launch of Swachh Bharat Mission (Gramin) on October 2, 2014 there is an improvement of 8.12 percentage points in number of rural households having toilets, with 50.17% rural households covered as of February 2016.