THE BIZARRE PROCESS OF LAW-MAKING IN INDIA.

[ DISCLAIMER--I welcome the imperfect amendment to the Juvenile Justice Act approved by Parliament on 22nd October. Not because of what Mr. Subramaniam Swami says on TV or what Nirbhaya's poor mother says at India Gate, but because of what the the NCRB ( National Crime Records Bureau) says: in 2014, of 2144 rapes committed by juveniles 1488 or 70% were perpetrated by those in the 16-18 age group; of 1163 murders by juveniles, as many as 844 or almost 75% were committed by youth in this age group. It was incumbent upon society, therefore, to revoke the immunity from punishment for such heinous offences that this age group enjoyed so far. But I do not agree with, or approve of, the manner in which this legislation was hurriedly passed.]

     The primary function of Parliaments anywhere is to formulate and approve laws for the betterment of a country. It is further expected that since such laws would inevitably affect the lives of millions of citizens, and since they cannot violate any constitutional provisions, Parliament would subject such laws to the most stringent scrutiny and debate before passing them. In the India of today both these presumptions would be mis-placed and wrong. The amendment to the JJ Act establishes this unequivocally.

     The Lok Sabha and the Raj Sabha have, over the last few years, been failing in their primary function of legislating laws that have an effect on the vitals of our society. Both during UPA-2 and the first two years of the NDA govt. Parliament has been used more for settling political scores, posturing for elections and trading charges than for any constructive legislative work. The important work of legislating has been outsourced to either the Courts or to Jantar Mantar.

   Both our Houses are in a chronic state of inertia and congenitally deaf to the demands and needs of of a rapidly changing society. They wake up only when the voices from Jantar Mantar or India Gate, combined with the bursting of tear gas shells, come too close to their privileged comforts, or when the censures from the Supreme Court can be ignored no longer. Parliament's legislative record over the last few years bears ample testimony to this.

  The laws relating to rape in the IPC were amended only after the unprecedented protests in 2012 led to the recommendations of the Verma Committee. Section 66 A of the Information Technology Act, long used by all governments to intimidate and brow-beat those who thought differently, was given the quietus only after it was struck down by the Supreme Court. The perversity of treating attempted suicide as a criminal offence was emphasised so strongly by the courts that the Government has had no other option but to prepare an amendment to the relevant section of IPC to decriminalise it. The Whistle Blowers' Act has been drafted under the constant and not so gentle prodding of the Supreme Court again. ( Incidentally, Parliament has yet to pass these Bills). The same Court, having waited for an eternity for Parliament to provide for disqualification of convicted MPs and MLAs, finally had to wield the hatchet itself and made Mr. Lalu Yadav the prototype of a model which should have a good run in the days to come. And today we learn that the Govt. has endorsed a private member's Bill- the Right of Transgender Person's Bill 2015- which seeks to recognise that these persons too have rights, but only after the Supreme Court's ruling that they constitute a legitimate third sex left them with little choice. The amended Juvenile Justice Act is thus only the latest link in this sorry chain of legislative indolence: its birth was not natural, but induced by protests at India Gate that had the government seriously worried about a repeat of the Nirbhaya tumult three years ago.

  The sloth is so deep seated, however, that notwithstanding constant demands from civil society and persuasive suggestions from the Judiciary, many other societal reforms are held up because Parliament just can't be diverted from its daily dose of blood sports in both Houses. Homosexuality is yet to be decriminalised even though the Delhi High Court in a judgement that does it great credit has held it to be not only legal but also natural and the Supreme Court has hinted that Parliament should repeal this pernicious law. Defamation continues to be a criminal offence even though the press and legal experts have asked that it be limited to a civil cause of action only. Parliament is yet to spare the time to consider making laws for Surrogacy or Physician Assisted Suicide or the Living Will or protection of Internet privacy- concepts which are pushing the frontiers of modern medicine and jurisprudence all over the world, but which have no place in our Parliamentarians' world of subsidised bungalows, cheap mutton cutlets, free air travel and foreign jaunts. They will bestir themselves only when another Anna Hazare appears at Jantar Mantar or another five judge bench of the Supreme Court pronounces on a matter or another Aruna Shaunbag dies after forty years of a vegetative existence.

   Paradoxically, however, Parliament (and state legislatures) are very quick to pass laws when it comes to granting or extending all kinds of reservations and quotas to various communities and classes, even when they clearly violate the red line of 50% set by the Supreme Court. This too, of course, is done under the pressure of violent agitations: I am always amazed at why our legislatures respond with such alacrity to one kind of pressure but not to the other?!

   It is possible that I am being too harsh on our elected "leaders" ( a misnomer, actually, because they have ceased to lead a long time ago, and now prefer to be led by the nose by populism or herded by party whips). Maybe, just maybe, they have discovered the perfect formula for political survival: avoid all controversial issues, don't take a position on any subject which you can't understand or don't  have an interest in( which is most subjects), leave all the hard work and unpleasant decisions to the Courts, and if all else fails, come up with an instant " 2 Minute Statute" not unlike the 2 Minute Maggi Noodles. Conversely, when it comes down to vote bank politics, it perhaps makes equal sense to surrender all sense of constitutionality and pass the dubious legislation, leaving it to the courts ( who else ?) to strike them down.

   This perverse logic may be politically sound but it does no credit to our legislatures. It also contains many inherent dangers. For one, when you make laws under pressure the resultant legislation is likely to be defective; particularly in laws that are penal in nature such flaws can do great injustice to individuals and transgress their freedoms. In recent times such distortions have become evident in the laws relating to domestic violence, rape, divorce, atrocities on scheduled castes, to mention just a few- even the courts have now started pointing these out. Criminal laws, in particular, need to be thoroughly studied, analysed and debated, both within and outside the Legislatures. This cannot happen if Parliament functions under the threat of lynch mobs and apoplectic TV anchors. The amended JJ Act is a case in point. While the lowering of culpable age from 18 to 16 years is welcome, there is a lack of clarity on many issues: what constitutes a " heinous crime"? Are all crimes that carry a sentence of seven years to be treated as a heinous crime? If so, then is the amendment also applicable to non-violent crimes that carry a sentence of seven years? If yes, then does this correspond to the intent of the legislature? The entire responsibility of treating juveniles between the ages of 16-18 years has now been put on the Juvenile Justice Boards, but do all districts have such Boards ( most do not)? Does the system have enough psychiatrists/ psychologists/ counsellors to assess the culpability of these juveniles ( it most definitely does not) ? Such, and many other, doubts should have been addressed before the Bill was passed, but this is no longer the norm in our Parliament. Our MPs will either not consider any legislation, or if they do, then they will pass them post haste without any discussion! Such extremes of perversity are hard to fathom.

  We would all do well to remember that rule of law is the bedrock of democracy. But it does not come cheap- it has to be sustained and preserved, with toil and tears, by every successive generation. We have been fortunate to have received it as a legacy by the stalwarts and visionaries who have come before but it is high time that our law makers stopped squandering it.

COPA 21 AND CLIMATE CHANGE: IS ANYONE TALKING ABOUT THE ECOLOGY ?

    The truest and most visionary statement at COPA 21 in Paris was made by the Indian Prime Minister, Narender Modi four days back. Speaking at the launch of the Solar Alliance he said:

" Convergence between economy, ecology and energy shall define our future."

Never were truer or more prescient words uttered. Mr. Modi has intuitively identified the three driving forces on which the future of this planet rests. And yet, the conference in Paris is focused exclusively on the economy and energy, to the almost complete exclusion of the ecology, a silent backdrop desperately waiting to be addressed. COPA 21 is in effect an economists' forum where the larger natural environment has been given short shrift. Climate change and global warming have been reduced to just two more stock market indices and are being computed only in terms of their impact on GDP percentages, industrial growth, unemployment figures. food production. climate refugees, the optimum mix of energy types, and so on. The only convergence we see is between economists and politicians. Unfortunately, notwithstanding Mr. Modi's words, the Indian position is no different.

   No one is talking about the threat to the natural environment or ecology which has sustained man ever since he crawled out of the sludge millions of years ago: the forests, rivers, wetlands, glaciers, mountains, snowfields, coral reefs, and the flora and fauna that depend on them. The problem has been reduced to a mathematical formulation- 2* C temperature rise, and the solution to a catch phrase- " carbon space." As if the capping of green house gas emissions is all that is required to save the world. What about the rampant destruction of our ecology? Forests which hold the soil, retain water, give us oxygen, absorb carbon: is Paris aware that our existing forests contain more carbon than what is present in the world's atmosphere ? Rivers which nurture civilisations but are being dammed and polluted out of existence ? The polar ice caps which hold 98% of the world's fresh water but where  it is now proposed to drill for oil and minerals? The vast wetlands such as the Pantanal and the Sunderbans which control floods and erosion and provide livelihoods to millions? The mountains and glaciers which which moderate climate and control run-offs ? The coral reefs which not only shelter islands but also provide a unique eco-system for marine life, but are now being obliterated by pollutants and chemicals in the oceans? And finally, what about the mind boggling diversity of animal life which these natural wonders contain, doomed to extinction not because of green house gases but because of our ruthless greed and apathy ?

   Here is what is happening to them:

* The Tibetan plateau is the third Pole, containing 46000 glaciers and covering 100000 sq.kilometers. It is the source of 10 major rivers on whose waters depend 1.5 billion people. They are shrinking at an alarming rate, and could all be gone by the turn of the century.

* Rivers are drying up under the onslaught of dams and irrigation needs: one in 10 rivers no longer flows into the sea for many months in a year. By 2025- yes, in just ten years!- more than 2 billion people would be affected by severe water shortages. Future wars would be fought over water, not oil- disputes have already arisen between India-China, India-Bangladesh, India-Pakistan, not to mention Tamil Nadu-Karnataka and Delhi-Haryana.

* 13 million hectares of forests disappear every year. The Amazon basin has lost 20% of its green cover and Haiti has lost 98%! According to IUCN one third-34%- of the world's conifers are at risk of extinction due to logging and diseases.

* Insatiable consumerism spells doom for our forests. The demand for paper has increased 5 times in 50 years. The world's ever increasing appetite for meat has resulted in thousands of hectares of forests being converted into soya bean and corn fields to feed  cattle. The same destruction is taking place in Malaysia to create palm oil plantations.

* This deforestation is releasing tens of millions of tons of carbon, till now locked up in the trees, into the atmosphere.

* Destruction of habitats and ecology is ensuring that by 2050 one quarter of the world's species will be threatened with extinction- 21000 out of 70000 species of plants and animals are already on IUCN's Red List. We harvest 100 million tons of fish from the oceans every year- much more than nature can restock. 75% of the fishing grounds are exhausted, but there is no holding back avaricious nations like Japan which just last week sent its whalers to slaughter another 400 whales in the Antarctic, even though this has been held to be illegal by the International Court of Justice.

  Notwithstanding Mr. Modi's fine words, this contempt and disregard for the natural ecology is evident in India too, and is getting worse under Mr. Javadekar's dispensation. The regulatory mechanism to protect the environment set up by enlightened individuals and the courts is being dismantelled under the garb of " ease of doing business". EIAs and EMPs are being dispensed with, roads are being allowed in National Parks and Tiger Habitats, the sanctity of buffer zones are being violated, mining is being permitted in hitherto " no go" areas, river-linking projects are being rammed through without any environmental studies, the Forest Rights Act has been deliberately diluted to enable easier diversion of forest land for industry.  The environmental integrity of the Western Ghats has been severely compromised by rejecting the recommendations of both the Gadgil ( 2011) and Kasturirangan ( 2013) Committees' recommendations to declare 67% and 37% of the Ghats as ESA ( Environmentally Sensitive Areas), respectively; by reducing this to 30% the present government has capitulated to the mining and developer lobby, and exposed thousands of hectares of biologically rich natural landscape to rape on an industrial scale: the price will be paid in the years to come by the millions who depend on the ghats for water, climate moderation and forest produce.

  We have done more than our bit to eradicate various forms of animal life too. According to the latest report of the Zoological Survey of India laid in Parliament recently, between 2010 and 2012 India has added 253 species to the endangered list, which went up from 190 to 443 during this period. It must have crossed the 500 mark by now.

 There exist also  major contradictions and disregard for our natural ecology in India's own INDCs ( Intended Nationally Determined Contributions) submitted to COPA21. In these, we have resolved to produce 100 GigaWatts- i.e. 100,000MW- of hydel power by 2025. Our current generation capacity under this head, according to the Ministry's own website, is just 39,623.40 MW. This means that we shall be building additional capacity of 60000MW over the next ten years. This is a frightening thought:creation of the existing capacity of 39000MW has already devastated states like Himachal, Uttarakhand, Arunachal Pradesh ( have we already forgotten the disaster in Uttarakhand and the regular " flash floods" in Kinnaur and Kullu every year?); the addition of another 60000 MW in the fragile Himalayan eco-system cannot but add to further damage to rivers and their valleys, cutting down of lakhs of trees, adverse impacts on agriculture and livelihoods of indigenous peoples and tribals.

  Our INDCs also propose to sequester 100 million tonnes of carbon by bringing an additional 10 million hectares under forest cover by 2025. This has to be a joke, given our past performance in this area. According to the govt's own State of the Forest Reports, though our "green cover" increased by 3.3 million hectares between 1999 and 2013, the country actually LOST 10.6 million hectares of ORIGINAL, DENSE forests during this period. It is the latter figure and not the former which indicates our actual forest cover: the 3.3 million ha. is partly a sleight of hand( it includes commercial plantations of tea, rubber etc. not captured earlier), and partly mono culture plantations which have no ecological value whatsoever. Therefore, given that we lose about 600,000 ha. of virgin forests every year, there is no way Mr. Javadekar can add a million ha. every year for the next ten years, especially given the industrial route he is following in the exploitation of our natural resources. In a nut shell, therefore, our efforts in the hydro sector will simply ensure destruction of our ecology on a greater scale.

  If the objective of COPA21 is to guarantee to future generations  sustainable development and quality of living, then this neglect of the natural ecology is inexplicable. There can be no secure cobweb if its critical strands are removed. Paris must pay greater and immediate attention to the preservation of the earth's natural assets and features: there is little point in creating a "carbon space" at the cost of pillaging our ecology. India of all countries should realise this, not only because of the floods in Mumbai, Uttarakhand, Srinagar and Chennai, but because of our ancient civilisational values that worship Nature both as a Mother and as a God. For there can be no Plan B once we destroy the ecology. No one has posed the question, and the fear, better than the poet Mehmoud Darwish:

         "  Where should we go after the last frontiers ?

             Where should the birds fly after the last sky ?"