The Hindu Editorial Analysis- 29th November 2022 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Why in News?

At the recently concluded COP27 summit, delegates from the United Nations agreed to create a 'Loss and Damages' fund which will compensate the most vulnerable countries for their losses due to climate-related disasters.

What is 'Loss and Damage' Funding?

• 'Loss and Damage' refers to impacts of climate change that cannot be avoided either by mitigation (cutting greenhouse gas emissions) or adaptation (modifying practices to buffer against climate change impacts).
• They also include not only economic damage to property but also loss of livelihoods, and the destruction of biodiversity and sites that have cultural importance.
• This broadens the scope for affected nations to claim compensation.

How has the Concept of Loss and Damage Evolved?

• Since the United Nations Framework Convention on Climate Change was formed in the early 1990s, loss and damage due to climate change have been debated.
• The Least Developed Countries Group has long aimed to establish accountability and compensation for loss and destruction.
• However, historically blamed for the climate catastrophe, rich countries have overlooked the concerns of vulnerable countries.
• Warsaw International Mechanism on Loss and Damages (WIM) was founded in 2013 without funding after extensive pressure from developing countries.
• However, during the 2021 COP26 climate summit in Glasgow, a 3-year task force was established to consider a funding arrangement for loss and damage.
• So far, Canada, Denmark, Germany, New Zealand, Scotland and the Belgian province of Wallonia have all expressed interest in loss and damage funding.

What are the Concerns regarding the Establishment of the Fund?

• As far as future COP negotiations are concerned, it only commits to creating a fund and leaves it up to discussion how it will be set up and, most importantly, who will contribute to it.
• While there have been nominal commitments by certain countries to donate to such a fund, the estimated L&D is already over USD 500 billion.
• During negotiations in COP27, the European Union pressed hard for China, the Arab states and “large, developing countries” (probably even India) to contribute on the grounds that they were large emitters.
• There is no agreement yet on what counts as "loss and damage" caused by climate change - which could include infrastructure damage, property damage, and cultural assets whose value is hard to quantify.
• Climate funding so far has focused mostly on cutting carbon dioxide emissions in an effort to curb global warming, while about a third of it has gone toward projects to help communities adapt to future impacts.

What are India's Related Initiatives?

• National Adaptation Fund for Climate Change (NAFCC):
  • It was established in 2015 to meet the cost of adaptation to climate change for the State and Union Territories of India that are particularly vulnerable to the adverse effects of climate change.
• National Clean Energy Fund:
  • The Fund was created to promote clean energy, and funded through an initial carbon tax on the use of coal by industries.
  • It is governed by an Inter-Ministerial Group with the Finance Secretary as the Chairman.
  • Its mandate is to fund research and development of innovative clean energy technology in the fossil and non-fossil fuel-based sectors.
• National Adaptation Fund:
  • The fund was established in 2014 with a corpus of Rs. 100 crores with the aim of bridging the gap between the need and the available funds.
  • The fund is operated under the Ministry of Environment, Forests, and Climate Change (MoEF&CC).

Way Forward

• While the gain is incremental, countries ought not to lose momentum and must work harder to ensure that COPs remain credible catalysts and are not mere occasions for some hollow victories.
• Further, there is a need to sustain a political commitment to raising new finance, besides, ensuring that finance is better targeted at reducing emissions and vulnerability. Learning and improving from recent experiences, particularly as the Green Climate Fund gets to work.

• The Supreme Court recently issued a notice to the Centre on a plea to grant legal recognition to same-sex marriages and alliances between members of LGBTIQ+ community under the Special Marriage Act.
  • The petition raised the absence of a legal framework which allowed members of the LGBTQ+ community to marry any person of their choice. 

What is Same-Sex Marriage?

• It is the practice of marriage between two men or between two women.
• Same-sex marriage has been regulated through law, religion, and custom in most countries of the world.
• As of 2022, marriage between same-sex couples is legally performed and recognized in more than 30 countries.
  • The most recent country legalising it is Mexico. 

Arguments in favour of legalising Same-Sex Marriage

• The Special Marriage Act of 1954: 
  • It provides a civil form of marriage for couples who cannot marry under their personal law.
• Fundamental Right: 
  • Right to marry a person of one's choice is a fundamental right guaranteed under the Constitution of India to each person and has been recognised explicitly by the court.
    • Members of the LGBTQ+ community have the same human, fundamental and constitutional rights as other citizens.
• Right to equality: 
  • The petitioners have argued that barring them from marriage violates their right to equality.
• Global practice:
  • According to global think tank Council of Foreign Relations, same sex marriages are legal in at least 30 countries, including the United States, Australia, Canada and France.

Arguments against legalising Same-Sex Marriage

• Against Biological relation:
  • Marriage in India can be recognised only if it is between a biological man and a biological woman capable of producing children.
• Judicial interference:
  • The government has said that any interference by a court in the marital statute based on personal laws will create havoc in society and will run against the intent of Parliament in framing the laws.
• Fundamental rights are not absolute:
  • Fundamental right cannot be an untrammeled right and cannot override other constitutional principles.
• Unnecessary hype:
  • The matter is neither of national importance nor has it affected the majority of the population.
• Absence of civil rights issues: 
  • The 2018 judgment of the Supreme Court decriminalised homosexuality but did not get into civil rights issues. 
  • As a consequence, same-sex relationships are legal but civil rights such as marriage, inheritance or adoption, are not guaranteed to the lesbian, gay, bisexual, transgender, queer and intersex community.
• Lack of legal framework:
  • The legal framework governing the institution of marriage in this country does not presently allow members of the LGBTQ+ community to marry the person of their choice.
  • Couple cannot protect the family, and matters like adoption, opening a joint bank account or admission of children remain uncertain on account of failure of the law to recognise same sex unions.
• Section 4 of the Special Marriage Act:
  • It although permits any two persons to solemnize a marriage, the subsequent conditions in sub Section (c) therein restrict its application only to males and females. 
• Counter to global challenges:
  • Legalizing same-sex marriage in India would run counter to a number of global challenges. 
    • Recently, Singapore scrapped criminal penalties for gay sex, but stopped short of allowing marriage. 

Way Forward

• NALSA v. Union of India:
  • Here, Supreme Court categorically held that Indian Constitution protects non-binary individuals and that the protections envisaged under Articles 14, 15, 16, 19 and 21 cannot be restricted to the biological sex of male or female.
• The issue is a sequel to Navtej Singh Johar (decriminalising Section 377 of IPC) (2018) and K S Puttaswamy (right to privacy) (2017) judgements.
  • Same sex marriage is a continuation of this constitutional journey. 
  • In both the cases the Supreme Court has held that LGBTQ+ persons enjoy the right to equality, dignity and privacy guaranteed by the Constitution on the same footing as all other citizens. 
    • So thereby, the right to marry a person of one's choice should extend to LGBTQ+ citizens, as well.