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3RD OCTOBER – EDITORIALS/OPINIONS ANALYSES

Contents

  1. Pathways to diversity
  2. Issues of consent, reliability in narco and polygraph tests

Pathways to diversity

Why in news?

The UN Summit on Biodiversity convened on September 30 in New York.

Details:

In New York, member-nations of the Convention on Biological Diversity (CBD) took note of the link between biodiversity loss and the spread of animal pathogens, calling for an end to destructive industrial and commercial practices.

Performance of Aichi Targets:

There is consensus that conservation targets set a decade ago in Aichi, Japan, to be achieved by 2020, have spectacularly failed.

Evidence is presented by the latest UN Global Biodiversity Outlook 5 report: none of the 20 targets has been fully met.

Many countries have chosen to ignore the connection between biodiversity and well-being, and depleted ecological capital in pursuit of financial prosperity.

Aichi targets that fell by the wayside:

  • Phasing out of subsidies that erode biodiversity,
    steps for resource use within safe ecological limits,
    preventing industrial fisheries from destroying threatened species and vulnerable ecosystems, and
    an end to pollution, including growing plastic waste.

Partial succeeded Aichi Targets:

A bright spot is the partial progress made on protecting surface and subsurface water, inland, coastal and marine areas.

But the losses appear even more stark from WWF’s Living Planet Index, which points to precipitous declines in vertebrate populations, a key indicator, by 68% over 1970 levels.

Faced with fast-eroding ecosystem health, the 196 CBD member-countries must chart a greener course, aligning it with the Paris Agreement, which has a significant impact on the health of flora and fauna.

India’s contribution:

India’s message was one of pride in an ancient conservation tradition, as one of the few megadiverse countries, and one that recognised the value of nature as much as the destructive impact of unregulated resources exploitation.

National laws of the 1970s and 1980s have indeed shielded islands of biodiversity, particularly in about 5% of the country’s land designated as protected areas, but they are today seen as irritants to speedy extraction of natural resources.

In this unseemly hurry, due process is sought to be dispensed with, as envisaged by the new EIA norms proposed by the NDA government. There is little concern for indigenous communities that have fostered biodiversity, and no effort to make them strong partners in improving the health of forests and buffer zones.

India has the opportunity to plan a trajectory of green growth after COVID-19, around clean energy, ecological agriculture, a freeze on expansion of mining and dam-building, resource recovery from waste, and regeneration of arid lands. It should join the coalition of the enlightened.

Background:

Aichi Targets:

The ‘Aichi Target’ adopted by the Convention on Biological Diversity (CBD) at its Nagoya conference. In the COP-10 meeting, the parties agreed that previous biodiversity protection targets are not achieved, So we need to do come up with new plans and targets

The short term plan provides a set of 20 ambitious yet achievable targets, collectively known as the Aichi Targets

Strategic Goal A: Address the underlying causes of biodiversity loss by mainstreaming biodiversity across government and society


1. Make people aware about the values of biodiversity
2. Integrated biodiversity values in development + poverty reduction plan
3. Subsidies which are harmful to biodiversity = and eliminate them, phase them out or reform them
4. Sustainable production and consumption 

Strategic Goal B: Reduce the direct pressures on biodiversity and promote sustainable use.

5. Reduce the rate of natural habitat loss + forest loss by at least 50%
6. Reduce overfishing
7. Agriculture, aquaculture and forestry in sustainable manner
8. Reduce pollution and excessive use of fertiliser
9. Prevent invasive alien species (non-native)
10. Minimise the choral reflow destruction, ocean acidification 

Strategic Goal C: To improve the status of biodiversity by safeguarding ecosystems, species and genetic diversity

11. Conserve terrestrial and inland water, coastal – marine areas
12. Prevent extinction of threatened species
13. Maintain genetic diversity of agro-plants, domesticated animals and minimising genetic erosion 

Strategic Goal D: Enhance the benefits to all from biodiversity and ecosystem services

14. Safeguard ecosystems for women, tribal, and poor.

15. Combat desertification and restore the degraded ecosystem
16. Operationalise the Nagoya protocol on genetic resources, via national legislations 

Strategic Goal E: Enhance implementation through participatory planning, knowledge management and capacity building

17. National biodiversity strategy and action plans – update for participation
18. Integrate the knowledge of tribal communities
19. Scientific and technological knowledge sharing application
20. Financial resources mobilisation

The IUCN Species Programme provides advice to Parties, other governments and partners on the implementation of the Strategic Plan for Biodiversity and it’s Aichi Biodiversity Targets (2011 – 2020), and is also heavily involved in work towards the Targets themselves.

WWF’s Living Planet Index:

  • It is published every 2 years by WWF.
  • It is a comprehensive study of trends in global biodiversity and the health of the planet.
  • The report presents a comprehensive overview of the state of the natural world through the Living Planet Index (LPI).
  • It is a measure of the state of the world’s biological diversity based on population trends of vertebrate species in terrestrial, freshwater and marine habitats.

Living Planet Report 2020

This year’s Living Planet Report, a collaboration between WWF International and the Zoological Society of London, is the 13th edition of the biennial publication tracking wildlife populations around the world.

Key Points

  1. The population of vertebrate species declined by around 68 per cent between 1970 and 2016. Living Planet Index was used by the report to calculate this decline.
  2. Wildlife populations in freshwater habitats suffered a decline of 84 per cent, equivalent to four per cent per year, particularly in Latin America and the Caribbean.
  3. The average two-thirds decline in global populations of mammals, birds, amphibians, reptiles and fish in less than 50 years in large parts is due to the same environmental destruction, which is contributing to emergence of zoonotic diseases such as Covid-19.
  4. 75 per cent of earth’s ice-free land has been significantly altered, most of the oceans polluted and over 85 per cent area of wetlands lost ~ all due to human activity.
  5. One in five plants is threatened with extinction.

Factors responsible for this decline:

  1. Land-use change.
  2. Use and trade of wildlife.
  3. Natural habitat loss.
  4. Degradation and deforestation driven by food production processes.

Issues of consent, reliability in narco and polygraph tests

What are polygraph and narcoanalysis tests?

A polygraph test is based on the assumption that physiological responses that are triggered when a person is lying are different from what they would be otherwise.

Instruments like cardio-cuffs or sensitive electrodes are attached to the person, and variables such as blood pressure, pulse, respiration, change in sweat gland activity, blood flow, etc., are measured as questions are put to them.

Narcoanalysis, by contrast, involves the injection of a drug, sodium pentothal, which induces a hypnotic or sedated state in which the subject’s imagination is neutralised, and they are expected to divulge information that is true.

The drug, referred to as “truth serum” in this context, was used in larger doses as anaesthesia during surgery, and is said to have been used during World War II for intelligence operations.

However, neither method has been proven scientifically to have a 100% success rate, and remain contentious in the medical field as well.

Are Indian investigators allowed to put accused through these tests?

In ‘Selvi & Ors vs State of Karnataka & Anr’ (2010), a Supreme Court Bench comprising Chief Justice of India K G Balakrishnan and Justices R V Raveendran and J M Panchal ruled that no lie detector tests should be administered “except on the basis of consent of the accused”.

Those who volunteer must have access to a lawyer, and have the physical, emotional, and legal implications of the test explained to them by police and the lawyer.

It said that the ‘Guidelines for the Administration of Polygraph Test on an Accused’ published by the National Human Rights Commission in 2000, must be strictly followed. The subject’s consent should be recorded before a judicial magistrate.

The results of the tests cannot be considered to be “confessions”, because those in a drugged-induced state cannot exercise a choice in answering questions that are put to them.

However, any information or material subsequently discovered with the help of such a voluntarily-taken test can be admitted as evidence.

Thus, if an accused reveals the location of a murder weapon in the course of the test, and police later find the weapon at that location, the statement of the accused will not be evidence, but the weapon will be.

The Bench took into consideration international norms on human rights, the right to a fair trial, and the right against self-incrimination under Article 20(3) of the Constitution.

“We must recognise that a forcible intrusion into a person’s mental processes is also an affront to human dignity and liberty, often with grave and long-lasting consequences,” the court said, observing that the state’s plea that the use of such scientific techniques would reduce ‘third degree’ methods “is a circular line of reasoning since one form of improper behaviour is sought to be replaced by another”.

Are investigators allowed to put people other than the accused in a criminal investigation — witnesses, victims, their families — through these tests?

The Supreme Court had said in its order that “no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise”, and expanded the same rule to others who can be made to undergo the test only if they consent to it.

It had said that forcing an individual to undergo these tests amounts to an “unwarranted intrusion into personal liberty”, but had left scope for “voluntary administration” of these techniques if the individuals gave consent.

The court examined the scope of Article 20(3), the right against self-incrimination, which states that no accused can be compelled to be a witness against himself.

It said that while this requires a person to be formally named as an accused, other provisions of the Criminal Procedure Code extend this protection to witnesses as well.

With reference to victims, especially of sexual offences, the Bench said that irrespective of the need to expedite the probe in such cases, a victim of an offence cannot be forced to undergo these tests as it would be “an unjustified intrusion into mental privacy and could lead to further stigma for the victim”.

In which criminal cases in recent years have these tests been used?

In most cases, investigating agencies seek permission for such tests to be done on accused or suspects, but rarely on victims or witnesses.

Most recently, the CBI has sought to conduct these tests on the driver and helper of the truck that hit the Unnao rape victim in Uttar Pradesh in July last year.

The polygraph test was also conducted on Dr Rajesh Talwar and Dr Nupur Talwar, who were accused of killing their daughter Aayushi and help Hemraj in Noida. The video of the narco analysis test on their compounder, Krishna, had been leaked.

Background:

Article 20 of Indian constitution

Article 20: Protection in Respect of Conviction for Offences

  • Article 20 grants protection against arbitrary and excessive punishment to an accused person, whether citizen or foreigner or legal person like a company or a corporation.
  • It contains three provisions in that direction:

Ex Post Facto Legislation 

  • The clause (1) of Article 20 protects individuals against ex post facto legislation, which means no individual can be convicted for actions that were committed before the enactment of the law.
  • In other words, when a legislature declares an act to be an offence or provides a penalty for an offence, it can’t make the law retroactive so as to prejudicially affect the individuals who have committed such acts prior to the enactment of that law.
  • Its not applicable in case of civil law as well as in tax laws

Immunity from Double Punishment 

  • The Constitution of India prohibits double punishment for the same offence. That is reflected in the clause (2) of Article 20, which safeguards an individual from facing multiple punishments or successive criminal proceedings for the same crime.
  • According to this clause, no person shall be prosecuted and punished for the same offence more than once.
  • If someone has been put on trial and punished in a previous proceeding of an offence, he can’t be prosecuted and punished for the same proceedings of an offence again in subsequent proceeding. If any law provides for the double punishment, it will be considered void.
  • Although Article 20 disapproves of the doctrine of ‘Double Jeopardy’, it does not give immunity from proceedings before a court of law or tribunal.
  • Hence, a public servant who has been punished for an offence in a court of law may yet be subjected to departmental proceedings for the same offence.
  • It is to be noted that Article 20 provides protection against double punishment only when the accused has been ‘prosecuted’ and ‘punished’ once.
  • Also, the Article does not prevent subsequent trial and conviction for another offence even if the two offences have some common aspects.

Immunity from Self-Incrimination

  • The immunity from self-incrimination is conferred in the Article 20(3) of the constitution which states that the accused can never be compelled to be a witness against himself. In short, no individual can be forced to accuse himself.
  • The scope of this immunity has, prima facie, been widened by the Supreme Court by interpreting the word ‘witness’ as inclusive of both oral and documentary evidence.
  • Hence, no person can be compelled to furnish any kind of evidence, which is reasonably likely to support a prosecution against him.
  • This ‘Right to Silence’ is not called upon in case any object or document is searched and seized from the possession of the accused.
  • For the same reason, the clause does not bar the medical examination of the accused or the obtaining of thumb-impression or specimen signature from him.
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