Gist of EPW May Week 4, 2019

The Economic and Political Weekly (EPW) is an important source of study material for IAS, especially for the current affairs segment. In this section, we give you the gist of the EPW magazine every week. The important topics covered in the weekly are analysed and explained in a simple language, all from a UPSC perspective.

 

1. Continual Diminishing of the Aravalli Hills

Context

  • The failure of Haryana and Rajasthan governments to rein in the miners despite the Supreme Court’s orders to preserve the hills, has resulted in severe degradation of the hills, causing many of them to vanish.

Significance of Aravalli

  • The 692 kilometre (km) long Aravalli range is considered a prime source of construction-related minerals.
  • Aravalli is spread across Haryana, Rajasthan, Gujarat, and Delhi.
  • However, the same range is also considered the “lungs” for the world’s most polluted air of Delhi–National Capital Region (NCR)
  • The south-west range of the hills that covers the region of Delhi–NCR (including Gurugram and Faridabad) is the most degraded forest range in India.
  • The same south-west range is responsible for the groundwater recharge of the “millennium city” Gurugram and of the most industrialised city of Haryana, Faridabad.
  • Historically, it is said that the Aravalli range checked the spread of the Thar Desert towards the Indo-Gangetic plains, serving as a catchment of rivers and plains
  • It is worth noting that the Aravalli range also provides habitat to a number of native plant and bird species and many exclusive animals like the jackal and mongoose.
  • Haryana, having the lowest forest cover at around 3.59% of the total forest cover in India, the Aravalli range is the only saving grace, providing the major portion of its forest cover

Implications of exploitation

  • Due to its overexploitation, the range is no longer an effective green barrier. If left untouched, the Aravalli range would be enough to preserve humidity and sufficient rainfall in the Delhi–NCR
  • The ever-increasing disappearance of the green cover has led to several droughts in this region over the past four decades.
  • The only dense forest cover of Delhi–NCR is at stake and is no longer considered effective for providing clean air, water, or soil as it used to, decades ago.

Court’s Order and Violations

  • In the past two and a half decades, more than 565 environmental crimes/matters have been reported in the south-west region of the Aravalli range out of which more 200 are still pending.
  • The present condition of the hills range indicates a failure of the law in its implementation.
  • In a landmark order of 1992, the Supreme Court ordered that the Aravalli range should only be subject to mining and industrial activities that are preapproved from the central government.
  • However, the order was not well implemented, and as a result, in May 2002:
    • The Supreme Court banned all mining (as well as pumping of water) in an area up to 5 km from the Delhi–Haryana border.
    • Put restrictions on the mining activities in the Rajasthan region of the Aravalli.
  • In order to bypass the purview of the Supreme Court’s order, the Rajasthan government, through an amendment, redefined “hill,” stating that any raised area less than 100 metres (m) cannot be categorised as a “hill.”
  • The Supreme Court, however, put a blanket ban on mining in 2009, across all the hills of the Aravalli. Yet, mining continued illegally.
  • In 2018, the Supreme Court expressed shock over the finding that 31 Aravalli hills have vanished in Rajasthan alone. Corresponding data is still not available for Haryana.
  • Although the Supreme Court categorically banned real estate activities in the Aravalli range falling under Haryana, the Haryana government not only gave a nod to the construction projects, but also actively aided in the running of these projects.
  • More recently, in February 2019, the Haryana legislative assembly amended the Punjab Land Preservation Act (PLPA) by giving the state the power to “regulate, restrict or prohibit” certain activities, including “clearing or breaking up” of land.
  • This amendment also removed several hills of the Aravalli range from the category of “restricted area,” making acres of the Aravalli range available for construction and mining activities

Intergenerational Equity

  • Illegal mining in the Aravalli range is not a clear-cut case of just the governments’ apathy, but the reasons also include the muscle power of strong mining lobbies and “influential colonisers” in Delhi–NCR.
  • The price of the power dynamics and the resultant exploitation of such natural resources will also be paid by future generations
  • The concept of “intergenerational equity” was introduced in the Stockholm Declaration, which stated:
    • The natural resources of the earth, must be safeguarded for the benefit of the present and future generations through careful planning or management, as appropriate.
  • However, the recognition of the rights of the present as well as the future generations has been ignored by the state authorities.

The Way Forward

  • In pursuit of intergenerational equity, it is important that the present generation take action to preserve the resources at hand.
  • The states should conduct the required studies to decipher the possible solutions, and then implement the precautionary measures for protecting the Aravalli range.
  • In this direction, the Supreme Court has laid down the “precautionary principle,” stating that the central and/or the state governments, while considering a project, must:
    • Foresee environmental degradation and shall prevent such degradation without waiting for scientific evidence to show that there will be irreparable damage to the environment.
  • In 2010, the term “precautionary principle” was adopted by the National Green Tribunal (NGT).
  • The NGT further establishes that the precautionary principle has a twofold obligation:
    • First, the project proponent must take all expected precautions to prevent pollution resulting from its activity.
    • Second, it has to take into consideration the principle of intergenerational equity and therefore, be cautious that it causes no irretrievable damage to natural assets.
  • In addition, the implementation of precautionary measures is considered on the basis of four elements, namely:
    • The level of threat that warrants action,
    • The level of evidence required to avoid taking precautionary action,
    • The range of actions that are under consideration, and
    • The necessary level of force of the actions.
  • In the case of the Aravalli range, the reports from the Forest Survey of India, the Supreme Court’s observations, and several civil society studies establish the threat of mining and construction activities over the natural resources and people.
  • However, the need of the hour is that the authorities must learn from their “history of (mis)conduct,” and state governments must constitute committees to measure the anthropogenic impacts on the Aravalli’s ecology over the past seven decades.
  • After evaluating these impacts, the respective governments must implement a strategy consisting of precautionary measures taking into consideration the fundamental rights of the future generations over the Aravalli range.

2. Women in the Law

Context

  • In the recent years, the Indian judiciary has, without any doubt, helped women make significant strides in their long and hard struggle for an equal place in the law.
  • However, it is important to reflect on how these decisions shape the discourse around women’s place as equal citizens, and what they may mean for future legal battles.

Women and Religion

  • The Bombay High Court’s decision allowing women to enter the sanctum sanctorum of the Haji Ali dargah, was in some ways the first of the many progressive judgments that the judiciary has been hailed for in the recent years.
  • The Bombay High Court opined that the Haji Ali Dargah Trust was a public charitable trust, open to all public.
  • Once a public character is attached to a place of worship, the court held,
  • Fundamental rights under Article 14 (equality before law),
  • Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and
  • Article 25 (freedom of conscience and free profession, practice and propagation of religion) of the Constitution would come into play.
  • The court found the practice of disallowing women from entering into the sanctum sanctorum to be a violation of the above-mentioned fundamental rights.
  • The Supreme Court struck down the practice of talaq-e-biddat, more commonly known as triple talaq, for being violative of Article 14 of the Constitution which requires laws to be reasonable and non-arbitrary.
  • The Court held the practice to be manifestly arbitrary as it is instant and irrevocable, and leaves no room for reconciliation between the husband and wife, allowing a man to whimsically end a marital tie.
  • In the “Sabarimala” case as well, the Supreme Court found the temple’s practice of disallowing women of menstrual age as being violative of their fundamental right under Article 25 which “equally” entitles everyone to freely practise religion.
  • The Court further held that the right under Article 25 has nothing to do with gender or certain physiological factors specifically attributable to women, and is equally available to both men and women of all age groups.
  • The obvious commonality in these cases was that they tested the boundaries of the constitutional protection for religious freedom.
  • In each of the cases, therefore, the finding that the practice in question was not an essential or integral part of the religion was an important tipping point.

‘Love Jihad’ and Adultery Case

  • In the famous case of Hadiya case, which came to be known as the “love jihad” case, the Supreme Court went to great lengths to uphold the decision of a 24-year-old woman to convert to Islam and marry a man of her choosing.
    • The Court sharply criticised the paternalistic approach taken by the Kerala High Court when declaring her marriage with a Muslim man as null and void.
    • The high court’s approach, it appears, was motivated by the growing fear around “love jihad,” which right-wing forces allege is being practised in several states.
  • In the “Adultery” case, where the constitutionality of substantive and procedural provisions relating to adultery was challenged, the Court found the provisions unconstitutional.
    • The Court also went to great lengths to highlight that in the garb of protectionism, the impugned provisions led to the subordination of women, reflecting an evolving understanding of gender justice.
    • It found that instead of punishing the act itself, the impugned provision punished the propriety interest of a married man in his wife.
    • Further, the Court also emphasised on sexual autonomy of a woman, regardless of marital status, being a constitutionally guaranteed freedom.

There is no doubt that the judiciary has, through these decisions, set laudable precedents for gender justice in India. However, the judicial approach in deciding these cases is not entirely free from criticism.

No Single Voice

  • Yet another pattern that emerges from the above verdicts is the judges’ inclination to render separate opinions when giving their decisions.
  • This approach becomes problematic in cases where even though a majority of the judges arrive at a common conclusion, they arrive at the said conclusion using different rationales.
  • In the triple talaq case, for instance, the Court held the impugned practice to be unconstitutional by a slim majority of three out of five judges.
  • Similar patterns highlighting lack of consistency in the principles applied in opinions that together constitute the “majority opinion” can also be found in the Sabarimala case and the Adultery case.
  • Although the concern here with absence of a single voice may seem only for argument’s sake at first, it has wider implications.
    • The judges’ inability to speak in one voice becomes critical when one attempts to distil the ratio decidendi (the reasoning which forms the basis of a particular decision).
    • The judges’ tendency in the above cases to resort to varying rationales to arrive at the same conclusion makes it difficult to understand what principles have been laid down by the court.
    • This lack of clear principles is likely to, in turn, make it challenging for future litigants to place reliance on these landmark decisions in pursuing their legal battles against discriminatory practices.

Many Facets of Law

  • While it is certainly worth celebrating the largely consistent progressive approach taken by the judiciary, it is worth noting that Supreme Court judgments are merely one source of “law” in the country.
  • Worth equal (arguably, more) attention are the initiatives, both legislative and otherwise, taken by governments in championing the cause of women’s rights.
  • Further, it is of utmost importance that the judiciary’s positive contributions to the women’s rights discourse are not conflated with those of the incumbent government.
  • Not only does the judiciary operate separately from the government, but in most cases those who challenge legislative provisions on constitutional grounds are adversaries to governments.
  • Of relevance to the discussion is also the government’s emphasis on Muslim Women (Protection of Rights on Marriage) Bill, 2017. One of the most consistent legislative efforts by government on “gender issues”.
  • Lack of adequate support in the Rajya Sabha to make it a law led the government to promulgate (more than once) the bill as an ordinance.
  • Given the polarised political landscape in India, however, it comes as no surprise that the repeated re-promulgation of the ordinance has attracted sharp criticism from various quarters for being less about women’s rights and more about punishing Muslim men.

Conclusion

  • There is no doubt that the courts’ recent decisions have helped women in the country in their fight to establish a truly equal status for themselves.
  • By calling out oppressive practices and striking them down for treating women as subordinate citizens, the courts have indeed paved the way for future legal challenges against discriminatory practices.
  • It is, however, important to not lose sight of the larger picture. The National Crime Records Bureau continue to reveal shockingly high rates of crimes against women, and a recent poll deemed India to be the world’s most unsafe country for women.
  • Despite developments in law, therefore, the ground reality leaves much to be desired. One can only hope that a better place for women in the law will in due course result in a better reality for women in all spheres.

For more EPW articles, read “Gist of EPW”.

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