Daily Current Affairs : 17th and 18th November

Daily Current Affairs for UPSC CSE

Topics Covered

1. NJAC
2. Appointment, Removal and Independence of EC and CEC
3. Global threat assessment Report on Rhino
4. Carbon Border Tax
5. Moscow Format
6. Compensation against Loss and Damage
7. Facts for Prelims – Pangong Tso lake, Rule 6 of GST Council

1 . National Judicial Appointments Commission

Context:  Chief Justice of India D.Y. Chandrachud recently agreed to list in due course a writ petition to reconsider the Collegium system of judicial appointments to the Supreme Court and the High Courts.

About the news

• The petition sought the revival of the National Judicial Appointments Commission (NJAC), which briefly gave the government an equal role along with the judiciary in the appointment of judges to the constitutional courts
• The amendment Act was struck down by the Supreme Court in 2015.

Constitutional Provisions regarding appointment of Judges-

• Article 124 says the President should appoint Supreme Court judges after consultation with such judges of High Courts and the Supreme Court as he/she may deem necessary. The Chief Justice of India is to be consulted in all appointments barring his/her own.
• Article 217, which deals with the appointment of High Court judges, says the President should consult the CJI, Governor, and Chief Justice of the High Court concerned.

Collegium System

• The second judges case in 1993 provided that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court. But the Chief Justice would tender his advice on the matter after consulting two of his seniormost colleagues. This led to creation of collegium system.
• Similarly, in the Third Judges case (1998), the Court opined that the consultation process to be adopted by the Chief justice of India requires consultation of plurality judges. The sole opinion of the chief justice of India does not constitute the consultation process. He should consult a collegium of four seniormost judges of the Supreme Court.

Why is Collegium system being criticised?

• The Central government has criticised it saying it has created an imperium in imperio (empire within an empire) within the Supreme Court.
• The Supreme Court Bar Association has blamed it for creating a “give-and-take” culture, creating a rift between the haves and have-nots. While politicians and actors get instant relief from courts, the common man struggles for years for justice.

How and when was the NJAC established?

• The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] passed by the Lok Sabha on August 13, 2014 and by the Rajya Sabha on August 14 2014.
• Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions.
• Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014.
• The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015.
• It was composed of three senior judges, two eminent outsiders and the Law Minister
• The constitutional amendment was passed by Parliament and was ratified by 20 states.
• However, before it was notified, it was challenged in Supreme Court as an attempt by government to interfere with the independence of the judiciary.

Why Supreme Court struck down NJAC?

• NJAC did “not provide an adequate representation, to the judicial component” and that new provision in Constitution are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges”
• “Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC.”
• The amendment impinged upon the principles of “independence of the judiciary”, as well as, the “separation of powers”.
• The clause which provided for the inclusion of two “eminent persons” as Members of the NJAC was held ultra vires the provisions of the Constitution.
• On the other hand, the Supreme Court expressed its intention to find ways to improve the functioning of the collegium system.

2 . Appointment, Removal and Independence of EC and CEC

Context: An Election Commissioner can be proficient, competent, completely honest and armed with an outstanding record of service, but he may have a definite political leaning which may end up displaying itself in office, a Constitution Bench of the Supreme Court said on Thursday.

More about the news:

• Justice K.M. Joseph, leading a five-judge Bench, referred to how the 10th Chief Election Commissioner T.N. Seshan had managed to clean up the electoral system.
•  Justice Joseph said that Mr. Seshan merely had put in place a set of rules which reduced human discretion to the minimum.
• In such a scenario, Election Commissioners hardly need to fear pressure from any political party or government.
• Further, the Election Commission, as an institution, would maintain functional independence and institutional integrity, whatever the political leaning or competence of individual Commissioners may be.
• The Bench is examining a series of petitions seeking functional independence for Election Commissioners. They have sought an “independent, neutral mechanism” for their appointment, outside the control of the government.

Provisions regarding appointment (Article 324)

• The appointment of the chief election commissioner and other election commissioners shall be made by the president.
• When any other election commissioner is so appointed, the chief election commissioner shall act as the chairman of the election commission.
• The president may also appoint after consultation with the election commission such regional commissioners as he may consider necessary to assist the election commission
• The conditions of service and tenure of office of the election commissioners and the regional commissioners shall be determined by the president.

Removal

• They hold office for a term of six years or until they attain the age of 65 years, whichever is earlier.
• They can resign at any time from the office.
• They can also be removed before the expiry of their term

Independence

Article 324 of the Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the Election Commission:

• The chief election commissioner is provided with the security of tenure. He cannot be removed from his office except in same manner and on the same grounds as a judge of the Supreme Court. Thus, he does not hold his office till the pleasure of the president, though he is appointed by him.
• The service conditions of the chief election commissioner cannot be varied to his disadvantage after his appointment.
• Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the chief election commissioner.

3 . Global Threat Assessment report on Rhino

Context: In terms of weight, there has been an increase in the seizure of rhino horns after 2017, despite an overall reduction in poaching, says a global threat assessment report presented at a convention of wildlife conservation agencies in Panama City.

About the news

• A comprehensive analysis titled ‘Executive Summary of the Rhino Horn Trafficking as a Form of Transnational Organised Crime (2012-2021): 2022 Global Threat Assessment’, was presented at the meeting of the Conference of Parties organised by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
• Supported by the World Wide Fund for Nature, the Wildlife Justice Commission (WJC) prepared the document on the rhino horn trafficking during the decade from January 1, 2012, to December 31, 2021.
• The threat assessment was compiled from the analysis of 674 rhino horn seizure incidents that had occurred globally during this decade, in addition to seven years of criminal intelligence and findings from the WJC investigations into the rhino horn trafficking, conducted since 2015.
• The report said six countries and territories have dominated the rhino horn trafficking routes from the source to the destination locations although more than 50 countries and territories were implicated in the transnational crime.
• These countries were South Africa, Mozambique, Malaysia, Hong Kong Special Administrative Region, Vietnam, and China.
• Prolific Vietnamese and Chinese criminal networks are driving the racket throughout the supply chain.
• Vietnam is a highly significant transit and distribution area for products ultimately bound for China.

The Great One-horned Rhino

• The greater one-horned rhino (or “Indian rhino”) is the largest of the rhino species
• It is identified by a single black horn and a grey-brown hide with skin folds.
• This species of rhino is commonly found in Nepal, Bhutan, Pakistan and in Assam, India.
• Protection Status:
  • IUCN Red List: Vulnerable
  • CITES: Appendix I
  • Wildlife Protection Act, 1972: Schedule I

4 . Carbon Border Tax

Context: At COP27, consortium of countries, including India, have jointly said that carbon border taxes, which could result in market distortion and aggravate the trust deficit among parties, must be avoided.

What is Carbon Border Tax?

• The European Union has proposed a policy called the Carbon Border Adjustment Mechanism to tax products such as cement and steel, which are extremely carbon intensive, with effect from 2026.
• The measure is designed to protect European industries from competitors abroad who are not subjected to the same carbon levies.
• A transitional phase from 2023-25 will see importers monitoring and reporting their emissions.
• In the United States, the Democrats have proposed their own version of a tax on imports from countries that lack substantial climate policies as part of a $3.5 trillion budget plan. However, this proposal is far less detailed than the EU’s plan.
• Under the proposal, importers will be required to buy digital certificates representing the tonnage of carbon dioxide emissions embedded in their imported goods.

Reasons behind introducing Carbon Tax-

• The EU has declared to cut its carbon emissions by at least 55% by 2030 compared to 1990 levels. Till date, these levels have fallen by 24%. However, emissions from imports contributing to 20% of the EU’s CO2 emissions are increasing.
• Such a carbon tax would incentivise other countries to reduce GHG emissions and further shrink the EU’s carbon footprint.
• The Emissions Trading System of the EU makes operating within the region expensive for certain businesses. The EU authorities fear that these businesses might prefer to relocate to countries that have more relaxed or no emission limits [Carbon Leakage]
• Countries that have already introduced carbon trading systems in their own countries will be benefitted by this initiative.
  • These industries of these exporting countries can claim a rebate equal to the amount of tax that they have already paid.

Why are Developing Countries opposing the tax?

• BASIC, a group comprising Brazil, India, South Africa and China, large economies that are significantly dependent on coal, has for several years voiced common concerns and reiterated their right to use fossil fuels during their transition to clean energy.
• They claim that these unilateral measures and discriminatory practices could result in market distortion and aggravate the trust deficit amongst Parties to UNFCCC.
• It is against the principles of equity and ‘Common but Differentiated Responsibilities and Respective Capabilities’ (CBDR-RC).
  • These principles acknowledge that richer countries have a responsibility of providing financial and technological assistance to developing and vulnerable countries to fight climate change.
• Developed countries have backtracked on finance and mitigation commitments and pledges [$100billion commitment] which would help developing nations cut down carbon emissions.
• Developed countries have ‘double standards’ since- while there was a significant increase in the consumption and production of fossil fuels in the past year by developed countries even as they continue to press developing countries to move away from the same resources.
• They said that adaptation was still not being accorded the balanced and substantive attention they deserved in the UN climate framework process, despite the opportunities and linkages with “loss and damage.”

Other Issues

• The EU’s notion of having a uniform standard all over the world for the environment is not borne out by the global consensus contained in the Article 12 of the Rio Declaration which says that the standards applicable to developed countries cannot be applied to developing countries.
• The policy can also be regarded as a disguised form of protectionism – restricting international trade to help domestic industries.

5 . Moscow Format

Context: India joined the latest meeting of the ‘Moscow format consultations on Afghanistan’ that was held on 16 November in the Russian capital.

What is Moscow Format?

• The Moscow format is one of the several dialogue platforms on Afghanistan.
• It began before the Taliban takeover of Kabul.
• The Moscow Format was set up in the year 2017 as a six-party mechanism. It involved Russia, India, Afghanistan, Iran, China and Pakistan.
  • The format was later expanded with the inclusion of some more countries.
• It now consists of Russia, China, Pakistan, Iran, Kazakhstan, Tajikistan, Kyrgyzstan, Uzbekistan, Turkmenistan and India. 
• Moscow Format Meeting on Afghanistan was the first formal contact between India and Taliban.

Recent Moscow Format Consultation-

• Joint Secretary in-charge of Pakistan-Afghanistan-Iran division of the Ministry of External Affairs (MEA), J.P. Singh, represented India at the talks.
• During the meeting, the participants discussed issues related to Afghanistan, including the current humanitarian situation and the ongoing efforts of various stakeholders to provide assistance, intra-Afghan talks, formation of an inclusive and representative government, efforts to counter threats of terrorism and ensuring regional security.
• Without imposing their vision of the religious and cultural arrangement of public life on the Kabul authorities, they will draw attention to the counter-productiveness of the restrictions imposed on the participation of women in the labour force and girls in the process of obtaining education.

6 . Compensation against Loss and Damage

Context:  Compensation against loss and damage due to climate change is finally on the main agenda at the ongoing Climate Change Conference (COP27) in Egypt, unlike previous years.

The decision to discuss loss and damage at COP27 follows recent climate disasters in Europe (worst drought in 500 years), Pakistan (worst ever flooding) and heat waves in many regions of the world.

About Loss and Damage-

• Loss and damage refer to the negative consequences of climate change on human societies and the natural environment.
• It is used in UN climate negotiations to express the effects of climate change that outweigh people’s ability to adapt.
• Climate change is affecting the frequency, intensity and geographical distribution of extreme weather events such as storms, floods and heatwaves etc and all these result in loss and damage, both economic and non-economic.
• Economic loss and damage may include damage to crops, homes or infrastructure.
• Non-economic loss and damage may include harm to human health and mobility; loss of access to territory, of cultural heritage and of indigenous and local knowledge; and loss of and damage to biodiversity and habitats.

History of the demand

• The appropriate response to loss and damage has been debated since the early 1990s when the UNFCCC was founded.
• The UN Framework Convention on Climate Change (UNFCCC), the 1994 international agreement that lays down the broad principles of the global effort to fight climate change, acknowledges the differentiated responsibility of nations.
• In 2009, developed countries agreed to provide US$ 100 billion every year from 2020 to help developing nations fight climate change. However, they are struggling to fulfil this promise.
• The Warsaw International Mechanism (WIM) for Loss and Damages, set up in 2013, was the first formal acknowledgment of the need to compensate developing countries struck by climate disasters.
• But the discussions under WIM focused on enhancing knowledge, strengthening dialogue, and building technical expertise. No money was on offer.
• During the 2021 COP26 climate summit in Glasgow, a 3-year task force was established to consider a funding arrangement for loss and damage.

Why the demand?

• The demand for compensation for loss and damage from climate disasters is an extension of the universally acknowledged “Polluter Pays” principle
  • It makes the polluter liable for paying not just for the cost of remedial action, but also for compensating the victims of environmental damage caused by their actions.
• In the climate change framework, the burden of responsibility falls on those rich countries that have contributed most of the greenhouse gas emissions since 1850, generally considered to be the beginning of the industrial age.
  • Ourworldindata.org cites data from the Global Carbon Project to show that between 1751 and 2017, 47% of the CO2 emissions came from the U.S. and the EU-28. In total, just 29 countries.
  • If Russia, Canada, Japan, and Australia are included, the combined contribution goes past 65 per cent, or almost two-thirds of all emissions.
• Historical responsibility is important because carbon dioxide remains in the atmosphere for hundreds of years, and it is the cumulative accumulation of this carbon dioxide that causes global warming.
• Developing countries were relatively late in starting out on economic development. They may be contributing to emissions now but they are the most affected by developed countries’ historic emissions.
  • India is among the top seven emitters of GHG emissions. But, put in the context of India’s population, its emissions are far lesser per head, than for others.
  • World average per capita GHG emissions were 6.3 tonnes of CO2 equivalent (tCO2e) in 2020. The U.S. is above this at 14, followed by 13 in the Russian Federation and 9.7 in China. India remains far below the world average at 2.4.

Why rich countries are resisting?

• Loss and damage claims can easily spiral into billions of dollars, or even more.
• According to a recent report by the UN Office for the Coordination of Humanitarian Efforts (UNOCHA) annual funding requests related to climate-linked disasters averaged $15.5 billion in the three-year period between 2019 and 2021.
  • The economic loss from cyclone Amphan in India and Bangladesh in 2020 has been assessed at $15 billion.
• The report said that the United States alone is estimated to have “inflicted more than $1.9 trillion in damages to other countries” due to its emissions.
• Then there are non-economic losses as well, including loss of lives, displacement and migration, health impacts, and damage to cultural heritage.

Challenges

• There are practical difficulties in estimating how much a country has actually suffered due to the actions of others.
• There is the step about assessing how much of the losses are due to the event itself, and what could be attributed to misgovernance.
  • For example, the flooding witnessed in Bengaluru recently could, to a large extent, be attributed to poor urban planning, even though a heavy downpour could be the result of climate change.
• Inclusion on the formal agenda is just the beginning and the actual provision for climate disaster compensation is still a long way away.
• Getting the rich and developed nations to contribute money has been a challenging battle.
• Past record suggests that the quantum of money put on the table for climate change purposes is never equivalent to the requirements.

7 . Facts for Prelims

Sherpa in G20-

• A sherpa is the personal representative of a head of state or head of government who prepares an international summit, such as the annual G7 and G20 summits.
• This reduces the amount of time and resources required at the negotiations of the heads of state at the final summit.
• The name is derived from the Sherpa people, a Nepalese ethnic group, who serve as guides and porters in the Himalayas, a reference to the fact that the sherpa clears the way for a head of state at a major summit.
• The sherpa is generally quite influential, although they do not have the authority to make a final decision about any given agreement.
• The Sherpa engages in planning, negotiation and implementation tasks through the Summit.
• They coordinate the agenda, seek consensus at the highest political levels, and participate in a series of pre-Summit consultations to help negotiate their leaders’ positions.
• Sherpas are career diplomats or senior government officials appointed by the leaders of their countries.
• There is only one Sherpa per Summit for each member country; he/she is assisted by several sous Sherpas.
• At the G20 Summit, work progresses through broadly two channels: the Finance Track and Sherpas’ Track.
• Towards the end of the process, the Sherpas, along with the Finance Track representatives, prepare the Leaders’ “Declaration” or “Communique”, which is the final outcome of the G20 Summit.
• India’s G20 Sherpa Amitabh Kant led an official delegation to the third G20 Sherpa meeting held in Yogyakarta, Indonesia from 26th to 29th of September, 2022.

Review Petition-

• According to the Constitution, any ruling by the Supreme Court is in the normal course final and binding, and it becomes the law of the land. It is considered final because it provides certainty for deciding future cases.
• However, the Constitution also gives, under Article 137, the Supreme Court the power to review its judgments or orders. This provision forms the legal basis for the filing of a “review petition”.
• A review petition must be filed within 30 days of pronouncement of the judgment.
• As per the Civil Procedure Code and the Supreme Court Rules, any person aggrieved by a ruling can seek a review.
  • This implies that it is not necessary that only parties to a case can seek a review of the judgment.
• Except in cases of death penalty, review petitions are heard through “circulation” by judges in their chambers. They are usually not heard in open court.
  • In a 2014 case, the Supreme Court held that review petitions in all death penalty cases will be heard in open court by a Bench of three judges.
• Lawyers in review petitions usually make their case through written submissions, and not oral arguments.
• The same judges who passed the original verdict usually also hear the review petition.
• There are narrow, specific grounds on which a review petition can be entertained. Therefore, the court has the power to review its rulings to correct a “patent error” — but not “minor mistakes of inconsequential import”.
• In a 1975 ruling, Justice Krishna Iyer said a review can be accepted “only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility”.
• In a 2013 ruling, the Supreme Court laid down three grounds for seeking a review of a verdict it has delivered:
  • the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him;
  • a mistake or error apparent on the face of the record; or
  • any other sufficient reason. In subsequent rulings, the court specified that “any sufficient reason” means a reason that is analogous to the other two grounds.

Pangong Tso Lake-

• It is an endorheic lake spanning eastern Ladakh and West Tibet situated at an elevation of 4,225 m (13,862 ft).
• It is 134 km (83 mi) long and divided into five sublakes, called Pangong Tso, Tso Nyak, Rum Tso (twin lakes) and Nyak Tso.
• Approximately 50% of the length of the overall lake lies within Tibet in China, 40% in Ladakh, India and the remaining 10% is disputed and is a de-facto buffer zone between India and China.
• The name reflects the mixed heritage of the lake: Pangong in Ladakhi means extensive concavity, the word Tso is Tibetan for lake.
• The Karakoram Mountain range, which crosses Tajikistan, Afghanistan, Pakistan, China and India, with heights of over 6,000 metres including K2, the world’s second highest peak, ends at the north bank of Pangong Tso.
• The lake’s water, while crystal clear, is brackish, making it undrinkable.
• It has a land-locked basin separated from the Indus River basin by a small elevated ridge, but is believed to have been part of the latter in prehistoric times.

Rule 6- GST Council

• According to Rule 6 of the Procedure and Conduct of Business Regulations of the GST council, a GST council meeting should be held once in a quarter of a financial year.
• The GST Council – a joint forum of the Centre and the states — was set up by the President as per Article 279A (1) of the amended Constitution.
• The members of the Council include the Union Finance Minister (chairperson), the Union Minister of State (Finance) from the Centre. Each state can nominate a minister in-charge of finance or taxation or any other minister as a member.
• The Council, according to Article 279, is meant to “make recommendations to the Union and the states on important issues related to GST, like the goods and services that may be subjected or exempted from GST, model GST Laws”.
• It also decides on various rate slabs of GST.
• Supreme Court in May this year stated that recommendations of the GST Council are not binding.
  • The court said Article 246A of the Constitution gives both Parliament and state legislatures “simultaneous” power to legislate on GST and recommendations of the Council “are the product of a collaborative dialogue involving the Union and States”