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The Hindu Editorial Analysis | PDF Download

Date: 12 September 2019
  • These are hugely contentious times for India’s criminal justice system. With sensational criminal cases, many of them involving celebrities, controversy erupts almost every day.
  • The courtroom presents an interesting picture. The judiciary stands apart, enjoying a certain insularity. It has the advantage of being required not to be overly communicative, which enables it to stay away from direct confrontation with others. Next are the prosecutors and investigators who plough a lonely furrow with none to support them; it is about the issue of trust. As for the defence team, a few articulate private lawyers hired by some influential accused persons seem to enjoy an immunity that encourages them to go overboard, often bordering on contempt, both within and outside court. In their perception, the prosecution team is somehow trying to fix the accused. .
  • In all this, investigators have no mechanism to air their grievances, and are made to bear the cross when things go wrong. In sum, the prosecution lawyers and investigating officers are pitted in an unequal battle against the defence. I perceive here a certain lack of appreciation for the hard work put in by the former. Most of them try in earnest to place the correct facts before the judge.
  • In such a backdrop, it is refreshing to note a bench of the Supreme Court, of Justice R. Banumathi and Justice A.S. Bopanna, observing recently that probe agencies such as the Enforcement Directorate and the Central Bureau of Investigation (CBI) needed a free hand to conduct their investigations. This was in response to a demand made by certain defence lawyers, that courts, even at the pre-trial stage, should be in a position to scrutinize every piece of evidence collected by the agencies before passing any orders, including those related to the granting of bail.
  • The top court’s positive observations permitting a certain latitude to an investigating officer are based on an anxiety that investigators should not be pressured to compromise on the confidentiality of evidence they have gathered during the process of data collection. In my view, the top court’s stand is sensible and reasonable. Investigators are sure to breathe more easy now while discharging their duties, instead of being wary of being bamboozled either by the court or the defence.

These are changed times

  • I can only reflect on goings-on in the CBI some two decades ago. Back then in the early 1980s and 1990s, arrests were rare. But now, given the sheer volume and complexity of investigative processes, especially those linked to multi-layered economic crime, on the one hand, and pressure from the public and the executive on the other, the pressure that the CBI should produce instant results is telling. As a result, the spotlight is solely on the agencies.
  • The essence of the charge against the CBI — some recent cases are examples — is that it has been selective in its targets, pursuing a campaign of vendetta at the behest of its political masters. It is strange that critics do not dispute the fundamental facts on which a case has been built against the accused. They harp only on alleged procedural irregularities. The fact is that the latter can be blamed only if during a trial the court finds malicious prosecution actuated by personal motives. During an ongoing investigation, the issue of establishing malice does not normally arise.
  • Recent events have flagged two main issues in court: the right of an accused to get bail and the need for custodial interrogation by probe agencies. Although the maxim that ‘bail is the rule, and jail is an exception’ has held sway since the times of the noted jurist, Justice V.R. Krishna Iyer, and the courts have been generally liberal in granting bail (this includes pre-arrest or the so-called ‘anticipatory bail’), the growing volume of crime and the dexterity of many offenders have induced a certain change in judicial thinking. Courts at all levels now believe that granting bail cannot be a routine and mechanical process, and that certain cases deserve an application of mind while ordering bail. This slight shift in stance has led to lengthy hearings before a bail application is disposed of. It has rightly invited adverse comments that while the application of an ordinary offender is summarily rejected, the rich and the famous are able to persuade judges to devote several sittings to decide the fate of their bail application.
  • In fairness to courts, however, they now demand and peruse prosecution documents to satisfy themselves that no injustice has been done to a bail applicant. When this is the case, neither the prosecution nor those accused can complain of judicial caprice or arbitrariness in the matter.

Custodial interrogation

  • There is also controversy over the need for custodial interrogation of an accused person. The complexity of present day crime and the ease with which the many details of a crime can be hidden enhance the need for custodial examination. While courts are convinced of its utility, nevertheless, they are circumspect and sparing in granting such custody. Investigators have been pilloried over this because of possible misuse in questioning under controlled conditions. Custodial questioning is with a view to getting details which have not been obtained earlier under routine examination. It would not be fair to say that such custody is sought only to humiliate an accused person. Police custody casts a serious responsibility on the investigating officer. Any pressure tactics or attempted physical violence (the usual thing in the past) on the person in custody is fraught with serious consequences as far as the investigator is concerned. This must amplify the fact that a request for custodial interrogation is made after due evaluation of the pros and cons. When there are reasonable guarantees, including accountability to the judiciary for civilized treatment of an accused in police custody, I wonder why there is a hue and cry when an accused person is required to be held in police custody for a few days.
  • Criminal law and its contours are evolving. It is easy to criticize and accuse police agencies charged with efficient solving of crime with arbitrariness. They are carrying out an extremely difficult job under “pressure cooker conditions”. The attempt should not be to choke them. Rather, the accent should be on allowing them more freedom to be professional without diluting the controls that are already in place.
  • Climate change is a global problem, and a global problem needs a global solution. The most recent Intergovernmental Panel on Climate Change (IPCC) report suggests that we, as humankind, might have just over a decade left to limit global warming. The IPCC says total global emissions will need to fall by 45% from 2010 levels by 2030 and reach net zero by 2050. If these targets are not met, tropical regions of the world, which are densely populated and happen to be mainly concentrated in the global South, are likely to be most negatively affected because of their low altitudes and pre-existing high temperatures. Some impact of this was already felt during the Tamil Nadu water crisis this year.
  • Sharing the burden
  • The global South, which has historically contributed less to the problem (and even at present its per capita carbon emissions are much smaller in comparison to the countries in the global North), happens to be at the receiving end of the lifestyle choices made by the global North. Although time is running out, a genuine global consensus on the mitigation of this problem is unfortunately missing. In the absence of a collective agreement, the environment is becoming the casualty. The bottom line is that both the worlds need to contribute to avert this danger in their self-interest. At the same time, the burden of adjustment cannot be equal when the underlying relationship between the two worlds has been historically unequal (Climate Injustice Funnel in graph). But what is the correct balance in terms of sharing this burden, something which can be politically and juridically just?
  • A just approach would involve a global sharing of the responsibility among countries according to their respective shares in global emissions.
  • Currently, the most accepted model of mitigating strategy has been the carbon trading process. However, it has its own limitations. Our proposal, a Just Energy Transition (JET), on the contrary, is premised on a sense of global justice in terms of climatic fallouts and the respective contributions of the countries. It will also help the resource-poor developing countries to make the energy transition without having to worry about the finances unduly. Instead, the current experiences of the developing countries point to the contrary.
  • Correcting injustice
  • How can this injustice be corrected while making the planet a better place to live in for future generations?
  • The first priority is to fundamentally change the energy infrastructure, which requires massive investments for the green energy programme across the world. What we propose here in some sense is a new global green deal. But how can it be financed? We suggest that those on the top of the funnel, apart from funding their own energy transition, partially support the transition for the countries at the bottom and this sharing of the burden of development be done in a way which inverts this injustice funnel. For a successful energy transition to a greener energy programme, countries have to spend around 1.5% of their GDP.
  • We propose that the global energy transition be financed through a system of the global carbon tax. Since the total global carbon emissions are 36.1 billion metric tonnes of CO2, this amounts to a global carbon tax of $46.1 per metric tonne.
  • Who subsidises whom and by how much? Those countries which emit more than the global per capita average pay for their own transition plus fund a part of the energy transition of those who are below this average. So, those at the receiving end of climate injustice are duly compensated for even as the entire world transitions to greener earth as a result of this process of carbon tax sharing. Currently, the global average of carbon emissions is 4.97 metric tonne per capita.
  • All the countries with emissions above this level (68 in all) are “payers” to finance energy transition for ‘beneficiary’ countries (135 in number), which are emitting below this level.
  • The total amount of “carbon compensation” made by the payer nations comes to around $570 billion. The distribution of this amount across the payer countries is based on their distance from the global average (controlled for their population size). The other side of the same coin is the compensated countries, and the distribution of this fund across them is also based on how lower their emissions are in comparison to the global average. Once you add (subtract) the carbon compensation amount to (from) each of the countries, you get the effective carbon tax for them.
  • The two top ‘payer’ countries in terms of absolute amounts of transfers are the U.S. and China since their emissions are higher than the global average. What’s interesting is that despite being a payer country, the effective tax rate for the Chinese is lower than the possible universal tax rate of $46.1 per metric tonne and that’s because their own energy transition (1.5% of China’s GDP) plus the global compensation they make requires a tax rate only of $34.4 per metric tonne. So, in that sense, the burden of adjustment is only partially falling on their shoulder and only because they emit more than the global average.
  • Robin Hood tax
  • In terms of ‘compensated’ countries, India comes at the top due to its population size and its distance from the global emissions’ average (India has per capita emissions of 1.73 metric tonne). The other suspects are all countries from the global South, but this list springs a few surprises like France, Sweden, and Switzerland. What this tells us is that even high-income countries which have currently kept their per capita emissions low are beneficiaries of this globally-just policy. With China in the first list and some of the first world countries in the second, it’s obvious what this policy wants to achieve. It wants all nations to climb down the emissions ladder without necessarily having to give up on their standard of living. It’s a global green Robin Hood tax!
  • Rohit Azad teaches economics at JNU, New Delhi, and Shouvik Chakraborty is a researcher at the Political Economy Research Institute, Amherst, U.S.