ILLEGAL MINING IN INDIA
(Akshika Kriti – Associate Editor, Legit)
Illegal mining counterbalance the interest of environmental concerns, huge business profits outside the boundaries of lawmaking; in general, it paints in a frightful future. To explore the legitimacy in Indian mining let us first have a look at the landmark judicial approach which ignited the issue of the legality of mining and environmental concerns.
Revamp in the legacy of mining by Judiciary
The Judgment held by the Supreme Court of India in the Common Cause and Ors. v. Union of India 2017 noted holder of the mining lease is required to adhere to the terms of the mining scheme, the mining plan, and other statutes as the Environmental Protection Act (1986), the Forest Conservation Act (1980), the Water (Prevention and Control of Pollution) Act (1981). Such mining operation which violates any of these requirements will be considered unlawful and illegal. It also emphasised, the narrowed down interpretation is not possible. Following it, Odisha imposed Rs 20,000 crore on iron ore miners. Then, after Odisha and Jharkhand issued a demand notice of Rs 50,000 crore on Coal India (CIL) subsidiaries. Extrapolating the fact to other minerals and all states, alarmed the companies to stand to lose the billions potentially.
Making of illegal to legal
For relief to miners, the government proposed to amend the mining laws for the relief of thousands of companies affected by the precedent that makes mining operations illegal in violation of environmental laws. The government finds it essential to save the collapse of companies and prevent the loss of workers. The high-level committee headed by Niti Aayog Vice-chairman Rajiv Kumar recommended amendment of Section 21(4) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter MMDR Act) to change the definition of illegal mining. The proposed change would make the mining illegal only if the contravention of the provision of the act and rules framed hereunder not in case of breach of any other lawful authority. Which simply needed the replacing of “without any lawful authority” with “in contravention of the provisions of this Act and rules and thereunder” under Section 21 (4) of the MMDR Act.
Ten days for Public Feedback Window
On 24 August 2020, the mines ministry released a notice summarising proposed reforms to the MMDR, which will narrow down the meaning of illegal mining to extraction done outside the mining lease area, the area granted to the company for mining. This amendment would make any violation of environmental or forest law within the mining lease area, no more illegal mining. This amendment seeks suggestions within ten days. A statement released by R Sreedhar, former chairperson of Mines, stated the government is making a mockery of transparent and cooperative federalism when it seeks the response in just ten days of which act is going to have reaching implications. The lack of knowledge regarding the amendment is also criticised as the full draft is not in front of people to give open suggestions. The summary of the amendment may hide the other crucial aspects which need rectification. The purpose of the pre-legislative consultation policy seems just a showing off. It is not even enough to approach RTI for the evaluation of policy. It clearly violates the pre-legislative consultation policy (PLCP).
Consequences of the proposed policy
The proposed structural reform by the government of India in the mining sector, including legal amendments, is aimed at boosting the economy. The government notes that it is conscious of environmental and social concerns as undoubtedly it is the endeavour to battle the slowdown in the economy amid the COVID-19 pandemic. This mining reform is regressive, and legally sophist could impact the rights of tribal communities and forest dwellers alongside the environment. However, the government stated this to be conscious of the environment and social concerns.
The policy seeks to increase employment, to engage more participation of the private sector in mineral exploration, this clear definition of illegal mining will remove the distinction between captive and non-captive mines, resolve prior legal issues concerning the environment, a step towards auction only regime, enhance the national mineral index and will create tangible assets using district mineral fund, etc.
One of the nine structural changes in the sector proposed aims to bring in is redefining the norms of exploration for auction of mineral blocks which is to ensure a seamless transition from exploration to production. The G2 and G3 level are the classifications which define the availability of mineral issues hereby the governmental and other agencies engaged in exploring mining areas up to G2 level for auction of mining lease and subsequently G3 level for composite lease. The concerned government proposed to increase the participation of private companies in exploration activities to reach the prescribed level of exploration. Thus, aiming to redefine the standard of exploration needed for auctioning of blocks for prospecting license-cum mining lease from the G3 level to of G4 level having potential for mineral development.
Physical structures are easier to be showcased, but mining-affected areas need more focus on restoration of ecology and improvement of the environment. Apart from this, crucial issues such as empowerment of tribal population, gender, health, and livelihoods also seek protections within the ambit of policy. The opening up of exploration work to private entities and coming up with the national mineral index seems to be good-intentioned for development. However, in the open market, there is a greater risk of over-utilisation or exploitation of natural resources. The market-based instruments undoubtedly will increase the revenue stream and met economic prospects government and provide employment opportunities to the locals, but still, it has to be under strict governance, keeping in mind the optimum use of natural resources which does not have a quick backup.
Looking toward dwellers, forests diversions for mining and other projects have in the recent past have severely affected the rights of tribal people and forest-dwelling communities. It is found that in recent years forests have been diverted without complying with the provisions of the Forest Rights Act alongside noncompliance of their consent too. The pandemic has affected each section, and the post-COVID policy interventions will surely affect their lives adversely, such as the decision for post-facto approvals of forest and environmental clearances have raised serious concerns about the adverse impact. The new proposed amendments to open up the mining sector for private sectors and setting aside the environmental issue would further undermine the rights related to dwellers such as the Forest Right Act, 2006, Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA), and the constitutional rights of tribal people and forest dwellers and severely affect their natural habitats.
Thus the new policy which would make illegal mining legal must be needed to take care of the environmental, social, and other concerns as an objective along with boosting the economy. The exploitation of natural resources and setting aside of the judicial pronouncement by making the same process legal is a threat to sustainable development. Furthermore, the rights of affected people such as forest dwellers live must not be kept at the stake of economy-boosting. The draft of the policy is needed to be balanced in each aspect of societal concern.
SHANGHAI COOPERATION ORGANISATION (SCO)
(Mayank Parashar – Member & Interview Team, Legit)
Shanghai Cooperation Organisation (SCO) is a Eurasian economic, political and military organisation and is a permanent intergovernmental International organisation aiming to maintain security stability and peace in the region. Shanghai cooperation organisation was created in 2001 by the leaders of China, Russia, Kazakhstan, Kyrgyzstan and Tajikistan. SCO is a territory document which outlines the principle and goals of the organisation. Russian and Chinese are the official languages of SCO's.In 2001 before the creation of SCO, China Kazakhstan, Kyrgyzstan, Russia and Tajikistan were members of the Shanghai five. India became a member of SCO in 2017.
There are many objectives of the SCO, first is to strengthen mutual trust among the member states and to strengthen the neighbourliness. The second is to promote effective cooperation in politics, research and technology, trade and economy and culture. The next objective is to enhance ties in education, energy, transport, environmental protection, tourism, etc. To maintain and ensure security, peace and stability in the region and establishment of rational, democratic, and fair new international political and economic order is also among one of the objectives.
India and Shanghai Cooperation Organisation
India's membership of SCO can help in promoting connectivity, achieving regional integration and stability across borders. Terrorism is one of the established problems among all SCO countries and India is also its major sufferer. India will be aided by the Regional Anti-Terrorist Structure (RATS) based in Tashkent, which could help India and other countries in improving necessary intelligence inputs on the movement of terror outfits, cybersecurity, drug-trafficking, and Public information of the region.
Why SCO membership is important for India?
A. . ENERGY SECURITY: Russia and Kazakhstan both were rich in energy resources like hydrocarbons and uranium, and they want to connect with big energy markets like India.
B. . SECURITY: The Asian Eurasian block can play a key role not only in stabilising Afghanistan post-2014, but also help for a joint platform against terrorism, reducing and minimising the maintenance of drug trafficking and ensuring energy security to all stakeholders.
C. ECONOMIC INTEGRATION: For connecting South Asia with Central Asia and to promote economic integration. By this, we can boost trade and investment ties between Central Asia and South Asia.
D. ROUTES: It opens up trade routes energy routes ok and says transit routes between Russia and China that passed through Central Asia that were hitherto closed to India.
E. SCO can be a platform for India and Pakistan to discuss BILATERAL ISSUES. By this, we can push Pakistan to enable India's overland access with the help of China and Russia.
F. SCO membership is an important COUNTER BALANCE to India's perceived tilt towards the US and its allies on security issues.
G. SCO is an opening for India to reach out to China, bilaterally as well as to deal with Pakistan.
H. SCO provides India with the hedge for its MARITIME STRATEGY which emphasizes cooperation and developing security networks with the US, Australia, Japan and Vietnam.
I. SCO’s marks are groups like East-Turkestan Islamic Movement (ETIM) and Al-Qaeda, whereas groups like Lashkar-e-Taiba, Jayesh-e-Mohammad, Harkat-ul-Mujahideen, Afghan Taliban and Haqqani Network do not come under the ambit of the SCO anti-terror structure.
Why India has been admitted to SCO?
A. . India's inclusion in the SCO makes it a more balanced regional organisation as the central Asian Republics perceive India as a soft balance and also the reason behind stunted growth in the regional, economic and strategic matter is the complicated dynamics between China and Russia, as neither has been willing to concede each other greater tough. India's entry in the forum at that point in time would be visualised as a balancing factor for both.
B. China sees the expansion as a step towards giving the organisation heft, especially since its ally, Pakistan is also joining up.
C. If SCO admits India and some countries from the Middle East then it would cover a vast landmass in the world and would be among regional associations with the largest populations and energy and mineral resources.
D. India is a vast market, market for raw materials and also a market to invest capital. Furthermore, China used to export his good as the reason for having large capital.
E. For the energy-exporting countries, India seems to be a huge market.
A. ASSOCIATED PROJECTS: Between the associated Nations, including, large-scale projects like telecommunication, infrastructure connectivity, etc. is neutral and can be continued.
B. ACCESSIBILITY: because of prevailing geopolitical tensions in the concerned region, India faces a challenge in getting access and harnessing to the Eurasian heartland.
C. REGIONAL INFLUENCE: In lieu of a close relationship between Russia and China or China-Pakistan due to the China- Pakistan economic corridor, belt road initiative, India needs to manage its association and tensions with China to peacefully maintain the economic and cultural relations and also because India and Pakistan are on continuous confrontation. Russia and China as a co-founder of the SCO are the powerful powers within the groupings, thus limiting India’s ability to contend itself.
In lieu of Pakistan supported terrorist activities in the country, India has tossed out all bilateral meetings with Pakistan and has held the neighbouring country responsible for such attacks in Kashmir. It is the first time that India is hosting an SCO summit. At the end of this year, the Shanghai cooperation organisation (SCO) heads of government meetings are to be held in India. On the sidelines of the SCO summit, any bilateral meetings between India and Pakistan would be crucial.
To strengthen mutual confidence and facilitate good neighbourly relations among its member-states has been the foundational goal of it, this goal must be achieved through gradual but consistent efforts by the SCO member-states. The Anti-terror mechanism available under SCO, i.e. RATS-SCO, should be tasked to spot and assess the presence of major terrorist groups and their support infrastructure throughout the SCO region. Other member nations must take steps to normalise the ties between India and Pakistan by the disposal of controversial issues like terrorism. it might improve the effectiveness and trust in SCO, as compared to other multilateral groupings, that did not bring peace to the subcontinent.
CAN DECLARING RAPE AS ‘NATIONAL EMERGENCY’ STOP IT?
(Sahil Shrivastav – Managing Editor, Legit)
In Sanskrit, it is said, which means the birth giver and the motherland are superior to all the other elements of the earth. Also, the Bible in 1 Corinthians 11:11 says, “In the Lord, however, a woman is not independent of man, and man is not independent of woman.” This explains the importance of the mutual existence of both men and women and every other individual who is an integral part of this society by the virtue of Birth itself. Furthermore, Modern Human Civilization has established various laws, codes, and Institutions to implement them, which aim to protect the rights of women and to be precise, tend to protect their ‘pride’. Various moral and ethics of good and just behaviour are taught. The question that still needs to be asked is if the teachings are good and if they inhibit the values of life, then why is the human race still not able to understand the fact that every human life is important and is vital to the growth of the society as a whole? Why is it hard for people to behave in the manner that they were supposed to? What is the reason that disables them from respecting the existence of others and especially women? Why is it that the women are still thought of as ‘inferior’?
Recently, Liberian President George Weah declared rape as National Emergency in the wake of rising cases of a sexual offence against women in the nation. Liberia has always been surrounded by problems such as poverty and unemployment, and the issue of rape provides no relief to the administration. The decision came after strikes and protests were held against the rising number of rape cases and the decision was taken to establish a separate Prosecutor’s office for dealing with rape cases, allocating funds to the National Security Task Force dedicated to protection against sexual and gender-based offences. Earlier in the year 2019 the President of Sierra Leone, Julius Maada Bio had also declared rape and sexual offence as a national emergency and had outlined plans for tackling the problem. He offered free and special hospitals for rape-victims and establishing a special task force and court division to hear the rape cases and related to sexual violence cases only. Though there have been many efforts with the moving time with many countries that have gone through the same situation at some point in time, the cases of rape and sexual violence have never dipped throughout the world.
As per the International Statistics on Crime Criminal Justice issued by the United Nations Office on Drugs and Crime published in 2010, the trend of rapes over the globe was observed to be increasing over 10 years. As per the report, in 1996 the median number of rape cases per million population was 5.3 which rose to 5.8 in the year 2001 and 6.8 in the year 2006. Hence, it is not wrong to ask despite all the measures being taken what makes it impossible to control the rising cases of rape? Have the laws been silent about it? The answer is NO! Every member country of the United Nations has in force a law that criminalises rape and treats it as a serious bodily offence. Does the implementation not take place properly? Maybe, in most of the developing nations, the rate of rape is less than that of the developed ones. There could be two possible reasons for it, one, the cases of rape is not reported in the developing nations, or the cases are less. Though the possibility of the first instance is more, it is not to be forgotten that the developed nations possess huge resources and have established meritorious instrumentalities to fight the rising cases of rape. Then why is it that the cases of rape are still uncontrollable?
Rape as a crime can be understood better with an understanding of the underlying criminal psychology. Many medical researchers have done studies on the criminal psychology governing the behaviour of the rapists and sexual offenders. Mental health issues like neurobiological Impairments, psychiatric disorders, paraphilia, cognitive distortions & intimacy/ attachment problems have been cited as driving forces for a person committing rape. Out of these, Paraphilia is a mental state in which a person is subject to intensive and recurring sexual fantasies and urges which lead to disturbance or turbulence in the social, occupational, and other aspects of life. This leads to lacking peace of mind and can in several cases lead to an immoral consequence such as rape or molestation or groping. Thus, it is important to learn the measures of controlling it and thereby establishing a peaceful state of mind. However, it would be wrong to say that all the cases of rape are results of such mental imbalance or psychotic disorders, yet it is considered one of the most important causes. Therefore, finding a solution to this issue can bring material changes in the contemporary scenario of the increasing rate of rapes.
Hence, the right question to ask is, are the subjects/ social actors given proper education that can govern their behaviour and thereby mitigate the number of rapes happening? The answer is NO! In most of the developing and third world countries, sex is still considered as a taboo and is not considered a topic of discussion. Discussion about sex is often considered unnecessary and unethical. However, the irony is having sex or thinking about having it does not affect someone’s morality and ethics. Just because the awareness is less and the urge for sex is high among the people, because of the technology and global outreach at fingertips, people end up committing crimes like sexual assault, molestation and rape. This is the root issue that increases in the number of rapes and sexual offences. Besides, it is often observed that all the segments of the society are involved in such crimes irrespective of the fact that they are educated or not. Therefore, it will not be wrong to say that with education, sex education is, in particular, the medicine or the cure to the rising number of rapes. Sex education has to be made a mandatory part of the academics and shall be taught at the age of puberty. This not only ensures proper dissemination of knowledge about sex as a biological process but also educates the audience about the measures that they can take to address specific issues. This also ensures proper counselling for those who are facing or have faced any kind of mental unhealthiness. Beside, non-conventional forms of education such as moral guidance and parental teachings are vital to the development of a person’s psyche. The society shall make an effort to understand that every woman is another human being and not any ‘material”, which can be used and directed to act the way they want.
All in all, it can be said that declaring an emergency and establishing mechanisms for redressal of rape victims or sexual offences’ victims are means of cure. However, this disease demands prevention and to do that it is important to address the buds of crime at their initial stage and end the threat. In the end, it is apt to say that “Wisdom is the only way out of the gloominess, the one who has it shall cherish it and the one who doesn’t shall acquire it!”
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Legit Originals: Volume 1, Issue 2(October 2020)
Happy to announce that, Legit by Internationalism, The Magazine on Legal Theory by Internationalism, is featured in the Top 100 Legal Blogs of India and hold the rank 56, by Feedspot.
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