Daily Current Affairs for UPSC CSE
- Rule of Law and Due Process of Law
- Virtual Autopsy
- Data Protection Bill
- Carbon Market
- Facts for Prelims : National Database on Sexual Offenders , Adaptation Fund
1 . Rule of Law and Due Process of Law
Context : In the background of Hyderabad encounter:-
Rule of law
The Rule of law originated in England and connotes absolute supremacy of regular law as opposed to arbitrary power. In a country where there is rule of law, it is regarded as the highest authority of the country. It was A.V. Dicey in England who popularized the rule of law and explained its 3 principles-
- No man can be punished except for violation of the law established in an ordinary court of country in a ordinary legal manner
- All person are subjected to ordinary law of land without any distinction based on rank or position
- Constitution is a result of ordinary law of land. However, this rule has been modified in India where it reads that the Constitution is the supreme law of land and all laws passed by legislature shall be consistent to it.
Although the concept was originated in England, it was Indians that played a major role in evolution of rule of law in India in the following ways-
- British rules were arbitrary and favoured them
- Indian nationalists protested and critisised the arbitrary use of authority by the Britishers and hence professed rule of law
- Indian legal professionals also started using these principles to defend the legal rights of Indians.
Due process of law
It’s an American concept.Due process has two aspects.
- Substantive due process envisages that the substantive provisions of a law should be reasonable and not arbitrary.
- Procedural due process envisages a reasonable procedure,i.e., the person affected should have fair right of hearing which includes four elements,
- Opportunity to be heard,
- An impartial tribunal,and
- An orderly procedure.
- Under the concept of ‘due process’, the Courts become the arbiter of reasonableness of both substantive as well as procedural provisions in a law.
What is practically followed in India – Maneka Gandhi Case
- In Maneka Gandhi vs UOI case the petitioner questioned the constitutional validity of Section 10(3)(c) of the Passport Act, 1967 which empowered the authority to impound the passport of person on the public interest. She contended that this section gives discretionary power to the authority to impound the passport without being heard which is unjust process and violative of right to equality and right to personal liberty.
- The seven judges bench of apex court upheld the contentions of petitioner that the procedure established under Article 21 should be just, fair and reasonable.
- Further such procedure should be tested under Articles 14 and 19 of the Constitution.
- Judges observed that law prescribing a procedure for deprivation of life and personal liberty in Article 21 could not be any sort of procedure but it had to be one that was neither arbitrary nor unfair nor unreasonable.
- Thus the due process concept is read under Article 21 by articulating that ‘procedure established by law’ must be fair, just and reasonable.
- Judges also observed that our Constitution has no ‘due process’ clause but in this branch of law, after Cooper and Maneka Gandhi, the consequence is the same”; and added that Article 21 is the counterpart of the procedural due process in the United States.
- The dynamic approach of the Supreme Court in respect of procedural law under Article 21 has led liberalization of bail procedures, restricting the solitary confinement, speedy disposal of criminal trials, strict procedure for arrest of person, liberalizing the rule of locus standi, ensured the legal assistance to the needy people, and awarding death sentences in rarest of rare case.
- Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.
2 . Virtual Autopsy
Context : India will be the first country in South and Southeast Asia to carry out these “virtual autopsies
So what is a virtual autopsy?
- An autopsy (postmortem examination, autopsia cadaverum, or obduction) is a highly specialized surgical procedure that consists of a thorough examination of a corpse to determine the cause and manner of death and to evaluate any disease or injury that may be present.
- Virtopsy is a word combining ‘virtual’ and ‘autopsy’ … for the purpose of autopsy and to find the cause of the death. Virtopsy can be employed as an alternative to standard autopsies for broad and systemic examination of the whole body as it is less time consuming, aids better diagnosis, and renders respect to religious sentiments.”
- In a virtual autopsy, doctors use radiation to examine the innards to reach a conclusion about the cause of death. A CT or an MRI machine could be used, in the same way that they are used to scan a living human’s body.
- According to a paper in The Lancet, the advent of virtual autopsy owes to the “Longstanding public objection to dissection of cadavers (that) re-emerged in the UK as a major issue after organ retention scandals in the late 1990s.
- Some groups —notably Jewish and Muslim communities — have religious objections to autopsy, and demand for a minimally-invasive alternative has increased.” (‘Post-mortem imaging as an alternative to autopsy in the diagnosis of adult deaths: a validation study’: 2012, Ian S D Roberts et. al)
- A virtual autopsy is also faster than a traditional one — 30 minutes against 2½ hours, and more cost-effective.
- Virtual autopsy began in Sweden, but is now a “standard technique” in major centres in Japan, the US, Australia, and many European countries.
Accuracy of virtual autopsy
- In 2018, in an article in the Journal of Pathology Informatics, Russian and Italian scientists compared the results of virtual autopsy and traditional postmortem.
- “Out of 23 cases for which the traditional post mortem examination found a cause of death, 15 (65%) were diagnosed correctly using virtual autopsy, these cases were considered as true positives. For one case for which the cause of death was unascertained, the same result was also obtained during the virtual autopsy. This case was considered as true negative. Overall, in 16/25 (64%) cases, virtual autopsy results matched that of the traditional autopsy,” they concluded.
3 . Data Protection Bill
Context : India’s first attempt to domestically legislate on the topic, the Personal Data Protection (PDP) Bill, 2019, has been approved by the Cabinet and is slated to be placed in Parliament this winter session. The Bill has three key aspects that were not previously included in a draft version, prepared by a committee headed by retired Justice B N Srikrishna.
- Data is any collection of information that is stored in a way so computers can easily read them
- Data usually refers to information about your messages, social media posts, online transactions, and browser searches.
- The individual whose data is being stored and processed is called the data principal in the PDP Bill.
- This large collection of information about you and your online habits has become an important source of profits, but also a potential avenue for invasion of privacy because it can reveal extremely personal aspects.
- Companies, governments, and political parties find it valuable because they can use it to find the most convincing ways to advertise to you online.
Who handles my data, and how?
- Data is stored in a physical space similar to a file cabinet of documents, and transported across country borders in underwater cables that run as deep as Mount Everest and as long as four times the Indian Ocean. To be considered useful, data has to be processed, which means analysed by computers.
- Data is collected and handled by entities called data fiduciaries. While the fiduciary controls how and why data is processed, the processing itself may be by a third party, the data processor. This distinction is important to delineate responsibility as data moves from entity to entity. For example, in the US, Facebook (the data controller) fell into controversy for the actions of the data processor — Cambridge Analytica.
- The physical attributes of data — where data is stored, where it is sent, where it is turned into something useful — are called data flows.
- Data localisation arguments are premised on the idea that data flows determine who has access to the data, who profits off it, who taxes and who “owns” it. However, many contend that the physical location of the data is not relevant in the cyber world.
How does the PDP Bill propose to regulate data transfer?
- Bill trifurcates personal data. The umbrella group is all personal data — data from which an individual can be identified.
- Some types of personal data are considered sensitive personal data (SPD), which the Bill defines as financial, health, sexual orientation, biometric, genetic, transgender status, caste, religious belief, and more.
- Another subset is critical personal data. The government at any time can deem something critical, and has given examples as military or national security data.
Three significant changes from the version drafted by a committee headed by the Justice B N Srikrishna Committee.
- The draft had said all fiduciaries must store a copy of all personal data in India — a provision that was criticised by foreign technology companies that store most of Indians’ data abroad and even some domestic startups that were worried about a foreign backlash. The approved Bill removes this stipulation, only requiring individual consent for data transfer abroad. Similar to the draft, however, the Bill still requires sensitive personal data to be stored only in India. It can be processed abroad only under certain conditions including approval of a Data Protection Agency (DPA). The final category of critical personal data must be stored and processed in India.
- The Bill mandates fiduciaries to give the government any non-personal data when demanded. Non-personal data refers to anonymised data, such as traffic patterns or demographic data. The previous draft did not apply to this type of data, which many companies use to fund their business model.
- The Bill also requires social media companies, which are deemed significant data fiduciaries based on factors such as volume and sensitivity of data as well as their turnover, to develop their own user verification mechanism. While the process can be voluntary for users and can be completely designed by the company, it will decrease the anonymity of users and “prevent trolling”, said official sources.
What are its other key features?
- The Bill includes exemptions for processing data without an individual’s consent for “reasonable purposes”, including security of the state, detection of any unlawful activity or fraud, whistleblowing, medical emergencies, credit scoring, operation of search engines and processing of publicly available data, official sources said.
- The Bill calls for the creation of an independent regulator DPA, which will oversee assessments and audits and definition making. Each company will have a Data Protection Officer (DPO) who will liaison with the DPA for auditing, grievance redressal, recording maintenance and more. The committee’s draft had required the DPO to be based in India.
- The committee’s draft had several other significant keywords that are expected to be in the Bill. “Purpose limitation” and “collection limitation” limit the collection of data to what is needed for “clear, specific, and lawful” purposes or for reasons that the data principal would “reasonably expect”. It also grants individuals the right to data portability, and the ability to access and transfer one’s own data. Finally, it legislates on the the right to be forgotten. With historical roots in European Union law, this right allows an individual to remove consent for data collection and disclosure. After the Cabinet approval of the bill, an official source said this concept is still “evolving” and has not been “concretised” yet.
- Government sources said they were open to the “widest debate on this Bill”.
Arguments in support of the bill
- A common argument from government officials has been that data localisation will help law-enforcement access data for investigations and enforcement. As of now, much of cross-border data transfer is governed by individual bilateral “mutual legal assistance treaties” — a process that almost all stakeholders agree is cumbersome. In addition, proponents highlight security against foreign attacks and surveillance, harkening notions of data sovereignty.
- Data regulation for privacy and security will have little teeth without localisation, calling upon models in China and Russia. Many economy stakeholders say localisation will also increase the ability of the Indian government to tax Internet giants.
Against the Bill
- Civil society groups have criticised the open-ended exceptions given to the government in the Bill, allowing for surveillance.
- Some lawyers contend that security and government access are not achieved by localisation. Even if the data is stored in the country, the encryption keys may still be out of reach of national agencies.
- Technology giants like Facebook and Google and their industry bodies are concerned with a fractured Internet (or a “splinternet”), where the domino effect of protectionist policy will lead to other countries following suit.
- Opponents say protectionism may backfire on India’s own young startups that are attempting global growth, or on larger firms that process foreign data in India, such as Tata Consulting Services and Wipro.
4 . Carbon Market
Context : Almost halfway through the climate conference in Madrid, one big thing it had to resolve — disagreements over setting up a new carbon market — remains contentious as ever.
The market mechanism
- Under the Paris Agreement, every country has to take action to fight climate change. These actions need not necessarily be in the form of reduction in greenhouse gas emissions, which can constrain economic growth. India, for example, has said it would reduce its emissions per unit of GDP.
- Only the developed countries have included absolute emission cuts in their action plans. Yet, there is scope for absolute emissions reductions in developing countries too.
- For example, a brick kiln in India can upgrade its technology and reduce emissions. But because India does not need to make absolute reductions, there is no incentive to make this investment. It is to deal with situations like these that the carbon market mechanism is conceived. Markets can potentially deliver emissions reductions over and above what countries are doing on their own.
- For example, if a developed country is unable to meet its reduction target, it can provide money or technology to the brick kiln in India, and then claim the reduction of emission as its own. Alternatively, the kiln can make the investment, and then offer on sale the emission reduction, called carbon credits. Another party, struggling to meet its own targets, can buy these credits and show these as their own.
- Carbon markets also existed under the Kyoto Protocol, which is being replaced by the Paris Agreement next year. The market mechanisms being proposed under the Paris Agreement are conceptually not very different, but are supposed to have more effective checks and balances, and monitoring and verification processes.
How to set up a market
- The provisions relating to setting up a new carbon market are described in Article 6 of the Paris Agreement. These are enabling provisions that allow for two different approaches of carbon trading, more or less on the lines described earlier.
- Article 6.2 enables bilateral arrangements for transfer of emissions reductions, while ensuring that they do not double-count the reductions. Article 6.4 talks about a wider carbon market in which reductions can be bought and sold by anyone.
- Article 6.8 provides for making ‘non-market approaches’ available to countries to achieve targets. It is not yet very clear what these approaches would constitute, but they could include any cooperative action, like collaboration on climate policy or common taxation, that are not market-based.
What is contentious
- The main tussle is over two or three broad issues — what happens to carbon credits earned in the Kyoto regime but not yet sold, what constitutes double-counting, and transparency mechanisms to be put in place.
- Developing countries have several million unsold CERs (certified emission reductions), each referring to one tonne of carbon dioxide-equivalent emission reduced, from the Kyoto regime. Under the Kyoto Protocol, only developed countries had the obligation to reduce emissions. In the initial phase, some of these were interested in buying CERs from projects in India or China, which were not obliged to make reductions.
- In the last few years, several countries walked out of the Kyoto Protocol, and those that remained did not feel compelled to fulfil their targets. The second commitment period of the Kyoto Protocol (2012-20) never came into force. As the demand for CERs crashed, countries like India were left with projects generating CERs with no one to buy them.
- India has about 750 million unsold CERs and, along with other similarly placed countries, wants these credits to be valid in the new mechanism too.
- Developed countries are opposing it on the ground that the rules and verification procedures under the Kyoto Protocol were not very robust; they want the new mechanism to start with a clean slate.
- The second issue is that of double counting, or corresponding adjustment. The new mechanism envisages carbon credits as commodities that can be traded multiple times among countries or private parties. It is important to ensure that in this process, credits are not counted at more than one place; whoever sells carbon credits should not simultaneously count these as emissions it has reduced.
- The developing countries argue that the country that reduced emissions should be able to show it even after selling the credits, and that adjustments should be made only for subsequent transfers, if any.
- Carbon markets are not essential to the implementation of Paris Agreement. But with the world doing far less than what is required to prevent catastrophic impacts of climate change, the markets can be an important tool to close the action gap.
5. Facts for Prelims
National Database on Sexual Offenders
- It is a central database of “sexual offenders” in the country which will be maintained by the NCRB for regular monitoring and tracking by the State Police.
- The database is accessible only to the law enforcement agencies for investigation and monitoring purpose.
- The database includes offenders convicted under charges of rape, gang rape, POCSO and eve teasing.
- It includes the names, addresses, photographs and ﬁnger prints of the convicts and can be accessed by police stations through a common software.
- The Adaptation Fund (AF) was established in 2001 to finance concrete adaptation projects and programmes in developing country Parties to the Kyoto Protocol that are particularly vulnerable to the adverse effects of climate change.
- The Adaptation Fund is financed with a share of proceeds from the clean development mechanism (CDM) project activities and other sources of funding. The share of proceeds amounts to 2 per centÂ of certified emission reductions (CERs) issued for a CDM project activity.
- The Adaptation Fund is supervised and managed by the Adaptation Fund Board (AFB). The AFB is composed of 16 members and 16 alternates and meets at least twice a year (Membership of the AFB).
- The World Bank serves as the interim trustee of the Adaptation Fund by invitation of the Parties to the Kyoto Protocol. On behalf of the Fund, the World Bank performs two core functions: it sells the Certified Emission Reduction certificates that help support the fund and manages the Adaptation Fund trust fund.