UPSC Essentials | Key terms of the past week with MCQs

— The notice, sent on January 25 through the Commissioner for Indus Waters, gives Pakistan 90 days to consider entering into intergovernmental negotiations to rectify the material breach of the treaty.

— The notice has invoked Article XII (3) of the treaty which says: The provisions of this Treaty may from time to time be modified by a duly ratified treaty concluded for that purpose between the two Governments.

KEY TAKEAWAYS

What is the Indus Water Treaty (IWT)?

— The six rivers of the Indus basin originate in Tibet and flow across the Himalayan ranges to end in the Arabian sea south of Karachi. Preceding partition, it was one common network for both India and Pakistan. However, while partition managed to draw terrestrial borders, the question of how to divide the Indus waters was something that needed to be worked out. Since the rivers flowed from India to Pakistan, the latter was unsurprisingly threatened by the prospect of being fed by the former.

— Initially, the issue of water sharing was sorted out by the Inter-Dominion accord of May 4, 1948 that laid out that India would release enough waters to Pakistan in return for annual payments from the latter. The problems of this arrangement was soon realised and it was considered necessary to find an alternative solution.

— Eventually, in 1960, the two countries reached a decisive step with the intervention of the World Bank wherein precise details were laid out regarding the way in which the waters would be distributed. The components of the treaty were fairly simple. The three western rivers (Jhelum, Chenab and Indus) were allocated to Pakistan while India was given control over the three eastern rivers (Ravi, Beas and Sutlej). While India could use the western rivers for consumption purpose, restrictions were placed on building of storage systems. The treaty states that aside of certain specific cases, no storage and irrigation systems can be built by India on the western rivers.

Map showing the Indus water system that is crucial for both Pakistan and Northern India. (Express Graphic)

Harikishan Sharma and Amitabh Sinha Explain:

What is the history of the dispute over the hydel projects?

— The notice appears to be a fallout of a longstanding dispute over two hydroelectric power projects that India is constructing – one on the Kishanganga river, a tributary of Jhelum, and the other on the Chenab.

— Pakistan has raised objections to these projects, and dispute resolution mechanisms under the Treaty have been invoked multiple times. But a full resolution has not been reached.

— In 2015, Pakistan asked that a Neutral Expert should be appointed to examine its technical objections to the Kishanganga and Ratle HEPs. But the following year, Pakistan unilaterally retracted this request, and proposed that a Court of Arbitration should adjudicate on its objections.

— In August 2016, Pakistan had approached the World Bank, which had brokered the 1960 Treaty, seeking the constitution of a Court of Arbitration under the relevant dispute redressal provisions of the Treaty.

— Instead of responding to Pakistan’s request for a Court of Arbitration, India moved a separate application asking for the appointment of a Neutral Expert, which is a lower level of dispute resolution provided in the Treaty. India had argued that Pakistan’s request for a Court of Arbitration violated the graded mechanism of dispute resolution in the Treaty.

— In between, a significant event had happened which had consequences for the Treaty. A Pakistan-backed terror attack on Uri in September 2016 had prompted calls within India to walk out of the Indus Waters Treaty, which allots a significantly bigger share of the six river waters to Pakistan. The Prime Minister had famously said that blood and water could not flow together, and India had suspended routine bi-annual talks between the Indus Commissioners of the two countries.

What happened with the two applications moved by Pakistan and India?

— The World Bank, the third party to the Treaty and the acknowledged arbiter of disputes was, meanwhile, faced with a unique situation of having received two separate requests for the same dispute. New Delhi feels that the World Bank is just a facilitator and has a limited role.

— On December 12, 2016, the World Bank had announced a “pause” in the separate processes initiated by India and Pakistan under the Indus Waters Treaty to allow the two countries to consider alternative ways to resolve their disagreements.

— The regular meetings of Indus Waters Commissioners resumed in 2017, and India tried to use these to find mutually agreeable solutions between 2017 and 2022. Pakistan, however, refused to discuss these issues at these meetings, sources said.

— At Pakistan’s continued insistence, the World Bank, in March last year, initiated actions on the requests of both India and Pakistan. On March 31, 2022, the World Bank decided to resume the process of appointing a Neutral Expert and a Chairman for the Court of Arbitration. In October last year, the Bank named Michel Lino as the Neutral Expert and Prof. Sean Murphy as Chairman of the Court of Arbitration.

“They will carry out their duties in their individual capacity as subject matter experts and independently of any other appointments they may currently hold,” the Bank said in a statement on October 17, 2022.

— On October 19, 2022, the Ministry of External Affairs said, “We have noted the World Bank’s announcement to concurrently appoint a Neutral Expert and a Chair of the Court of Arbitration in the ongoing matter related to the Kishanganga and Ratle projects.” Recognising the World Bank’s admission in its announcement that “carrying out two processes concurrently poses practical and legal challenges”, India would assess the matter, the MEA said. “India believes that the implementation of the Indus Water Treaty must be in the letter and spirit of the Treaty,” the MEA statement added.

— Such parallel consideration of same issues is not provided for in any provisions of the Treaty, and India has been repeatedly citing the possibility of the two processes delivering contradictory rulings, which could lead to an unprecedented and legally untenable situation, which is unforeseen in Treaty provisions.

What exactly is the dispute redressal mechanism laid down under the Treaty?

— The dispute redressal mechanism provided under Article IX of the IWT is a graded mechanism. It’s a 3-level mechanism. So, whenever India plans to start a project, under the Indus Water Treaty, it has to inform Pakistan that it is planning to build a project.

— Pakistan might oppose it and ask for more details. That would mean there is a question — and in case there is a question, that question has to be clarified between the two sides at the level of the Indus Commissioners.

— If that difference is not resolved by them, then the level is raised. The question then becomes a difference. That difference is to be resolved by another set mechanism, which is the Neutral Expert. It is at this stage that the World Bank comes into picture.

— In case the Neutral Expert says that they are not able to resolve the difference, or that the issue needs an interpretation of the Treaty, then that difference becomes a dispute. It then goes to the third stage — the Court of Arbitration.

— To sum up, it’s a very graded and sequential mechanism — first Commissioner, then Neutral Expert, and only then the Court of Arbitration.

What is India’s notice about, and what are its implications here onward?

— While the immediate provocation for the modification is to address the issue of two parallel mechanisms, at this point, the implications of India’s notice for modifying the treaty are not very clear.

— Article XII (3) of the Treaty that India has invoked is not a dispute redressal mechanism. It is in effect, a provision to amend the Treaty.

— However, an amendment or modification can happen only through a “duly ratified Treaty concluded for that purpose between the two governments”. Pakistan is under no obligation to agree to India’s proposal.

— As of now, it is not clear what happens if Pakistan does not respond to India’s notice within the 90-day period.

— The next provision in the Treaty, Article XII (4), provides for the termination of the Treaty through a similar process — “a duly ratified Treaty concluded for that purpose between the two governments”.

— India has not spelled out exactly what it wants modified in the Treaty. But over the last few years, especially since the Uri attack, there has been a growing demand in India to use the Indus Waters Treaty as a strategic tool, considering that India has a natural advantage being the upper riparian state.

— India has not fully utilized its rights over the waters of the three east-flowing rivers — Ravi, Beas and Sutlej — over which India has full control under the Treaty. It has also not adequately utilized the limited rights over the three west flowing rivers — Indus, Chenab and Jhelum — which are meant for Pakistan.

— Following the Uri attack, India had established a high-level task force to exploit the full potential of the Indus Waters Treaty. Accordingly, India has been working to start several big and small hydroelectric projects that had either been stalled or were in the planning stages.

(Source: The Indus Waters Treaty, and why India has issued notice to Pakistan seeking changesby Harikishan Sharma and Amitabh Sinha )

Point to ponder: Using water as a weapon is never a good idea. It would be so much better for both countries to treat the IWT as an instrument for collaboration on climate action in the fragile Himalayan region. Do you agree?

1. MCQ:

The Indus Waters Treaty does not give India absolute control over the river:

(a) Chenab

(b) Sutlej

(c) Beas

(d) Ravi

Living will

Why in news?

— A five-judge Bench of the Supreme Court headed by Justice K M Joseph agreed to significantly ease the procedure for passive euthanasia in the country by altering the existing guidelines for ‘living wills’, as laid down in its 2018 judgment in Common Cause vs. Union of India & Anr, which allowed passive euthanasia.

KEY TAKEAWAYS

Khadija Khan Explains:

What is euthanasia, and what is a living will?

— Euthanasia refers to the practice of an individual deliberately ending their life, oftentimes to get relief from an incurable condition, or intolerable pain and suffering. Euthanasia, which can be administered only by a physician, can be either ‘active’ or ‘passive’.

— Active euthanasia involves an active intervention to end a person’s life with substances or external force, such as administering a lethal injection. Passive euthanasia refers to withdrawing life support or treatment that is essential to keep a terminally ill person alive.

— Passive euthanasia was legalised in India by the Supreme Court in 2018, contingent upon the person having a ‘living will’ or a written document that specifies what actions should be taken if the person is unable to make their own medical decisions in the future.

— In case a person does not have a living will, members of their family can make a plea before the High Court to seek permission for passive euthanasia.

What did the SC rule in 2018?

— The Supreme Court allowed passive euthanasia while recognising the living wills of terminally-ill patients who could go into a permanent vegetative state, and issued guidelines regulating this procedure.

— A five-judge Constitution Bench headed by then Chief Justice of India (CJI) Dipak Misra said that the guidelines would be in force until Parliament passed legislation on this. However, this has not happened, and the absence of a law on this subject has rendered the 2018 judgment the last conclusive set of directions on euthanasia.

— The guidelines pertained to questions such as who would execute the living will, and the process by which approval could be granted by the medical board. “We declare that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life-saving devices,” the court said in the 2018 ruling.

What was the situation before 2018?

— In 1994, in a case challenging the constitutional validity of Section 309 of the IPC — which mandates up to one year in prison for attempt to suicide — the Supreme Court deemed the section to be a “cruel and irrational provision” that deserved to be removed from the statute book to “humanise our penal laws”. An act of suicide “cannot be said to be against religion, morality, or public policy, and an act of attempted suicide has no baneful effect on society”, the court said. (P Rathinam vs Union Of India)

— However, two years later, a five-judge Bench of the court overturned the decision in P Rathinam, saying that the right to life under Article 21 did not include the right to die, and only legislation could permit euthanasia. (Smt. Gian Kaur vs The State Of Punjab, 1996)

— In 2011, the SC allowed passive euthanasia for Aruna Shanbaug, a nurse who had been sexually assaulted in Mumbai in 1973, and had been in a vegetative state since then. The court made a distinction between ‘active’ and ‘passive’, and allowed the latter in “certain situations”. (Aruna Ramchandra Shanbaug vs Union Of India & Ors)

— Earlier, in 2006, the Law Commission of India in its 196th Report titled ‘Medical Treatment to Terminally Ill Patients (Protection of Patients and Medical Practitioners)’ had said that “a doctor who obeys the instructions of a competent patient to withhold or withdraw medical treatment does not commit a breach of professional duty and the omission to treat will not be an offence.” It had also recognised the patient’s decision to not receive medical treatment, and said it did not constitute an attempt to commit suicide under Section 309 IPC.

— Again, in 2008, the Law Commission’s ‘241st Report On Passive Euthanasia: A Relook’ proposed legislation on ‘passive euthanasia’, and also prepared a draft Bill.

What changes after the SC’s order this week?

— The petition was filed by a nonprofit association that submitted that the 2018 guidelines on living wills were “unworkable”. Though the detailed judgement is yet to be released, the Court dictated a part of their order in open court.

— As per 2018 guidelines, a living will was required to be signed by an executor (the individual seeking euthanasia) in the presence of two attesting witnesses, preferably independent, and to be further countersigned by a Judicial Magistrate of First Class (JMFC).

— Also, the treating physician was required to constitute a board comprising three expert medical practitioners from specific but varied fields of medicine, with at least 20 years of experience, who would decide whether to carry out the living will or not. If the medical board granted permission, the will had to be forwarded to the District Collector for his approval.

— The Collector was to then form another medical board of three expert doctors, including the Chief District Medical Officer. Only if this second board agreed with the hospital board’s findings would the decision be forwarded to the JMFC, who would then visit the patient and examine whether to accord approval. This cumbersome process will now become easier.

— Instead of the hospital and Collector forming the two medical boards, both boards will now be formed by the hospital. The requirement of 20 years of experience for the doctors has been relaxed to five years. The requirement for the Magistrate’s approval has been replaced by an intimation to the Magistrate. The medical board must communicate its decision within 48 hours; the earlier guidelines specified no time limit.

— The 2018 guidelines required two witnesses and a signature by the Magistrate; now a notary or gazetted officer can sign the living will in the presence of two witnesses instead of the Magistrate’s countersign. In case the medical boards set up by the hospital refuses permission, it will now be open to the kin to approach the High Court which will form a fresh medical team.

(Source: What is a living will, and the new Supreme Court order for simplifying passive euthanasia procedure? by Khadija Khan)

Point to ponder: The argument on euthanasia is always on moral grounds. Discuss.

2. MCQ:

Recently seen in news, 2018 judgment in Common Cause vs. Union of India & Anr is related to:

(a) Agricultural issues

(b) Women rights

(c) Environment issues

(d) None of the above

Immune Imprinting

Why in news?

— Since last September, countries like the UK and the US have rolled out variant-specific or bivalent boosters, in the hope that they would provide better protection against the coronavirus infection in comparison to the original vaccine. However, a slew of recent studies has shown that a phenomenon in our bodies, called immune imprinting, might be making these new boosters far less effective than expected.