The Chequered legacy of a Chief Justice of India
Why in News
- The Supreme Court of India in the last five years during the tenure of the last four Chief Justices of India (CJIs), has seen an unprecedented fall — from being an independent custodian of justice, to becoming an instrumentality of the government.
- After the tenure of former CJI Ranjan Gogoi, who oversaw the Ayodhya and Rafale verdicts, before retiring to join the Rajya Sabha, it was expected the tenure of CJI S.A. Bobde would restore its independence from the executive.
- But unfortunately, his tenure exposed a deep malaise in every aspect of dispensation of justice like:
- From the administration of the Court,
- In the allocation of cases and benches,
- To presiding over matters related to the protection of civil liberties,
- Securing the rights and the livelihood of the poor and marginalized,
- In ensuring that the unconstitutional actions and policies of the executive are kept in check.
Pending Cases during CJI S.A. Bobde Tenure
- During the beginning of his tenure in November 2019 many important cases were before him.
- There were over 100 petitions challenging the dilution of Article 370 and the reorganization of the State of Jammu and Kashmir (J&K) into Union Territories.
- Soon after he assumed office, the Citizenship (Amendment) Act was passed, which led to another spate of petitions challenging its constitutionality.
- The main challenge to the electoral bonds and other changes to electoral funding, which have a fundamental bearing on our democracy, remained unheard.
- The main petition regarding the status of the Rohingya refugees and the protection to be accorded to them, remained unheard.
- The Supreme Court, under his stewardship, remained shut for physical hearing much of the time, resulting in fewer than 25% cases being heard in a Court, already reeling under a backlog and pendency of cases.
- During the nationwide lockdown last year, the country witnessed unprecedented suffering by migrant labor.
- There was a mass exodus of them from the big cities, and they suffered a huge loss of livelihood and income.
- It would be no exaggeration to say that the Court’s inhumanity and apathy towards the distress of the poor and marginalised reached its nadir during this time.
- Far from being a custodian of citizens’ rights, CJI Bobde, while hearing the Kerala journalist Siddique Kappan’s habeas corpus petition (arrested while covering the infamous Hathras rape and murder case in Uttar Pradesh), noted that the Court had been discouraging people from approaching it under Article 32, Mr. Kappan’s petition remained pending with repeated adjournments.
- In the farmers’ protest case, the CJI appointed a committee of people, whose political neutrality was suspect, to examine the issues and commence negotiations with the farmers. These committee members had publicly supported the farm laws in the past.
- Apart from his role as the master of the roster, the CJI also plays a pivotal role in judicial appointments.
- Unfortunately, here too, he failed to carry the collegium with him, leading to no appointments to the Supreme Court during his tenure, and very few appointments even to the High Courts.
- The Chief Justice of India also plays a critical role in dealing with complaints against judges.
- During his tenure, the CJI received a serious complaint made by a Chief Minister of a State against one of the Court judges, with considerable documentary evidence of questionable land purchases.
- For over six months, the people in the country were not informed how the complaint had been dealt with, and whether any in-house committee (as per the law) has been appointed to, who the members of the committee were, and what their report was.
- The same lack of transparency was visible in another case, where he was chairman of a committee examining allegations of harassment made by a woman staffer of the Court against his predecessor.
- His report, purporting to give a clean chit to his predecessor, was never allowed to see the light of day and not even provided to the complainant.
- The only positive intervention by CJI Bobde was his order in the West Bengal trees case, where he appointed an expert committee to examine the value of trees which are to be felled for any public project.
- As we bid farewell to Chief Justice of India Bobde, the Supreme Court must examine what has happened to what had once been called the most powerful court in the world and a beacon for many other courts across the world.
- As the Supreme Court turns the page on his tenure, let us hope that in the coming years, it can rebuild its legacy by asserting its judicial independence from the government and once again reclaiming its constitutional role as a citadel that establishes India’s constitutional values, guards its democracy, and protects human rights and dignity.
GS PAPER III
Why in News
When the worst of the pandemic’s economic damage is over, countries and companies will be faced with a bigger financial climate crisis.
- Climate finance will be a central theme throughout 2021, including Leaders’ Summit on Climate.
- The conversation on climate finance is trapped between a negotiated maximum and a delivered minimum.
- In 2009, developed countries promised developing ones $100 billion by 2020 in climate finance. This number has been anything but straightforward in its interpretation or accounting.
- The Organization for Economic Cooperation and Development (OECD) estimated that $78.9 billion of climate finance was provided in 2018.
- Oxfam reported that in 2017-18, only $19-22.5 billion were paid (just a third for adaptation), after discounting for loan repayments, interest and administration costs.
- Even if OECD numbers were accepted, they stand in sharp contrast to other estimates that pegged global climate finance at more than $530 billion in 2017.
- Thus, developing countries claim they are not receiving anywhere near what was promised; and the claims of developed countries are a fraction of total global climate investment.
Four necessary shifts in Climate Finance in 2021:
- Capital is needed at far greater scale than what has been negotiated.
- According to one estimate, developing countries need $3.5 trillion to implement climate pledges up to 2030 (the Reserve Bank says India alone needs $2.5 trillion).
- For deep decarbonization of the energy sector, the capital requirement could be two-three times this value.
- Consider then that only $21 billion were invested as green finance in India in 2018, according to Climate Policy Initiative. Most of this was domestic capital, with foreign direct investment at just 5% and bilateral and multilateral sources at only 11%. Specifically for renewables, CEEW’s Centre for Energy Finance and the International Energy Agency find that $18 billion was invested in 2019. Although higher than thermal power investments for the previous half-decade, it is still well short of more than $30 billion needed annually. Domestic institutional debt dominates but project developers seek more international bond financing.
- There must be balance between public and private sources.
- Public funds cannot sufficiently pay for a low-carbon transition.
- OECD estimates showed public climate finance at $64.3 billion (bilateral and multilateral flows and export credits) against only $14.6 billion of private capital mobilized.
- The ratios have to inverse: Public capital must be leveraged to crowd in private investment.
- But the world’s largest sovereign wealth funds, pension funds and institutional investors shy away from developing countries considering them risky destinations.
- Mitigation and adaptation must be balanced as well.
- It is increasingly evident that investment can serve both ends concurrently (say, in climate-smart agriculture to withstand heat stress, increase drought resilience and boost soil carbon retention).
- There is still very limited insurance against climate shocks.
- According reinsurance giant Swiss Re, of $146 billion in damages from natural disasters in 2019, only $60 billion was insured.
- The ten-year average is much larger with $212 billion of losses annually.
- A rebalancing of climate finance would mean more blended capital, more resources for mitigation-cum-adaptation, and more insurance for climate-resilient infrastructure.
- Investment risk needs attention, otherwise green finance remains limited and costly.
- Expected equity internal rates of return for solar photovoltaic projects in India was about 15% during 2019-20.
- Embedded in these expectations were worries about ‘off taker’ risk and regulatory uncertainties.
- Without de-risking instruments, capital requirements for transitions in clean energy, sustainable mobility and low-carbon industry would be impossible to meet.
- Developing countries need three categories of blended finance, using limited public funds to underwrite risks for institutional investments:
- De-risking utility-scale renewables in emerging markets, by targeting non-project risks (exchange rate fluctuations, policy and political, off taker).
- To reduce the cost of finance for distributed energy solutions for small businesses, to clean their energy mix and upgrade production processes.
- Risk capital for R&D investment in disruptive technologies (such as green hydrogen or advanced biofuels).
- The share of public funding in each would vary, but all need partnerships across governments, multilateral financial institutions and private institutional investors and insurers.
- Regulation in developing countries must create an ecosystem for green finance.
- RBI has only taken tentative steps, giving priority sector lending status to small renewables in 2015 and, more recently, calling for deep green bond markets.
- The Securities and Exchange Board of India issued green bond guidelines in 2017.
- The ministry of finance’s Climate Change Finance Unit has, since 2011, mostly focused on representations in international forums.
- The Indian Renewable Energy Development Agency has spent more than half a decade deliberating whether to convert into a green bank or establish a green window with catalytic financial instruments.
These tentative steps need a jolt:
- Regulation must demand reporting on climate risk exposures for legacy and planned infrastructure to prioritize resilient projects or write down stranded assets.
- A green taxonomy would help sift out genuine from greenwashed investments. Green tagging increases visibility of assets and their climate impacts for potential investors.
- Tax incentives could encourage green bond issuances.
- Reducing information asymmetries (about investment opportunities, risks, market developments) could create larger portfolios of investment for emerging markets.
- CEEW and the Center for American Progress have recommended India-U.S. accelerator programmes to showcase proven technologies to venture capital and early-stage investors through a marketplace.
- Public funds should create pipelines of securitized, low-risk green projects (leveraging expected cash flows while underwriting them with a guarantee fund).
- By supporting these guarantees, developed countries could reduce cost of capital in developing and emerging markets.
- There must be greater coordination in regulatory forums, such as the Basel Committee on Banking Supervision or the Network for Greening the Financial System, to set standards but also building capacity of developing country financial regulators.
- Developing countries must hold rich countries accountable for not honoring climate finance commitments.
- Beyond a point, however, it can distract from a richer conversation that is urgently needed about the scale of total finance, balance via blended finance, guaranteeing differentiated risks, and regulating a green finance architecture.
- Money for the planet doesn’t grow on trees.