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AUGUST 25, 2017

Endgame for Section 377?

  • Even when rulings in one case may not directly impact those in other areas, they have the potential to change behaviour across society. Thus, activists see the ruling against triple talaq as generally empowering women among India’s Muslims. Similarly, the ruling that has closely followed it in time, namely the one upholding privacy as a fundamental right of the citizen under the Constitution, is believed to have major implications for the lives of Indians. We can see immediately that it stalls the incipient rise of the surveillance state. But it has been suggested that it has the potential to impact the Indian state’s regulation of sexual relations.
  • In particular, it has been suggested that the ruling has a bearing on the constitutional validity of Section 377 of the Indian Penal Code (IPC) which criminalises acts “against the order of nature”. In the first instance, this immediately devalues by association the homosexual condition, a historical peeve of European Christianity. It should be recognised that even though all religions drawing upon West Asian culture have strictures against homosexuality, it was the West that justified sexual persecution on aesthetic grounds. Under Hitler homosexuals were to be exterminated so that Germany would be populated by the perfect race. It needs to be acknowledged at the same time that it is the Christian West that has taken the lead in reversing the historical prejudice against homosexuality and that members of its political class have played a leading role in this. But we live in India and must perforce address its realities.
  • Within minutes of the Supreme Court’s ruling on the primacy of privacy, commentators pointed out that it has implications for Section 377 as no longer can sex acts in private be overseen by law. While this may at first blush appear to be a tenable interpretation, it is not an argument that is made by activists for gay rights. Incidentally, it must be said that this group includes a large number of Indians who are not in any way circumscribed by Section 377 as the fight for sexual equality is not spearheaded by gay men.
  • The case against Section 377 must be based on the argument that it is arbitrary in proscribing all but the ‘missionary position’ in intercourse. What the Indian law as it stands does is to violate the right to non-discriminatory treatment of the LGBT community who invariably reject this position.
  • The swing judge, so to speak, in the talaq ruling thought of the practice as bad in religion and therefore not “good in law”. This has a direct bearing on the path of LGBT rights in India as homosexuality is proscribed in some religions. Is this to be interpreted as suggesting that India’s gay Muslims and Christians should remain criminalised for all time? Not if we are to go by the court’s earlier rulings.
  • The NALSA judgment of 2014 is a landmark one in that it upheld the right to choose one’s sexual orientation. However, it did not go far enough to call for a repeal of Section 377. In some ways, however high-minded the judges in that case may have been, they did not allow their minds to soar enough to recognise sexual rights as legitimately redeemable through practice.


How the numbers compute – triple talaq judgment

The three judgments

  • In one common judgment, two of the five judges (Rohinton F. Nariman and U.U. Lalit) held that triple talaq was an element of statutory law — the Muslim Personal Law (Shariat) Application Act, 1937 — and, being arbitrary, was unconstitutional. They declined to express an opinion on the more general question of whether religious personal laws were immune from constitutional scrutiny under Article 25, which guarantees all citizens the right to freely practise their religion. (The Shariat Act of 1937 contained no reference to triple talaq and merely declared that the Shariat would be applicable uniformly to all Muslims in India in determining issues such as marriage, divorce, etc. Before the passage of this Act, Hindu inheritance laws were applied to certain Muslim communities in the North-Western Provinces, Punjab and Gujarat. This had a particularly pernicious effect on the rights of Muslim women which were relatively better secured under the Shariat.)
  • In a second common judgment, Chief Justice J.S. Khehar and Justice S. Abdul Nazeer held that the practice of triple talaq, being a component of personal law, was protected by Article 25 of the Constitution and could not be interfered with by the court. In the same breath they directed that this practice be abrogated by Parliament through legislation.
  • Matters standing thus evenly divided, the entire weight of the decision shifted to the opinion of the fifth judge, Justice Kurian Joseph. Justice Joseph holds triple talaq to be inoperative not because it violates fundamental rights, but because it is, on his reading, “Anti-Quran” and hence violative of the Shariat. Tellingly, he disagrees with Justices Nariman and Lalit on whether “the 1937 Act is a legislation regulating triple talaq and hence, [would be subject to the test] of Article 14”. This is a central pillar holding Justice Nariman and Justice Lalit’s argument together, and on no reasonable view can Justice Joseph’s judgment be understood as ‘concurring’ with theirs.

A cosmetic unity

  • It is clear that three judges of the Shayara Bano v. Union of India case did not come to the determination that triple talaq is gender discriminatory and hence unconstitutional — the very question that they were tasked with answering.
  • It is possible to cosmetically unite the three ‘majority’ judges at the level of an abstract intention, evinced in their judgments, that triple talaq is an undesirable practice and ought not to remain law. Such an indulgent interpretation however would reduce the complex task of judgment to the arbitrary, whimsical exercise of signing a summary — hardly worth the serious judicial time that this case has consumed. Undoubtedly, over time, this decision will come to be misdescribed in textbooks and judgments as one that ‘declared triple talaq unconstitutional’.
  • As officers of the highest court in the land, judges of the Supreme Court ought to be held accountable to high standards in their task of clarifying the law. They need reminding that the analytical rigour, clarity and consistency that their judgments lack will not somehow assemble in the minds of subordinate judges and students of the law, and that achieving a mathematical result (3:2) is no substitute for a reasoned decision.


Citizen vs State

  • In a rare unanimous verdict pronounced by nine judges, the Supreme Court has ruled that privacy is a fundamental right that requires constitutional protection. It was always known or assumed to be a common law right.
  • In concluding that “the right to be left alone” is an inalienable part of being human, the court has restated a fundamental principle, namely that some rights are natural and inherent; constitutions only recognise them and make them explicit. This restatement of first principles became necessary mainly due to a strange and perverse argument by the Union government in the course of the hearings on the validity of its Aadhaar-based unique identity scheme that privacy is not a fundamental right. The fact that all the judges unanimously came down on this argument shows how much the government misunderstood the constitutional underpinnings of privacy as a value in itself and as an ineluctable facet of human dignity.
  • The government argued that privacy is “so amorphous as to defy description”, that it is needless to call it a fundamental right as it is one in common law, and that it has been given statutory protection in different forms. There was even a suggestion that privacy is an imported value and that it is elitist. All these arguments fell by the wayside.
  • A welcome aspect of the judgment is that it makes it clear that sexual orientation is part of privacy and constitutionally protected, and that the 2014 verdict upholding Section 377 of the Indian Penal Code is flawed. This opens up the case for a much-needed reconsideration.
  • As for Aadhaar, it is pertinent to note that the judges have referred to the restrictions and limitations that privacy would be subject to. The test to decide the validity of any such restriction is that it is reasonable, based on fair procedure and free from arbitrariness or selective targeting or profiling. It can also be based on compelling state interest. This is where a cautionary note is in order.
  • Courts exercising writ jurisdiction should be cautious about the nature of the relief they grant based on wide and open-ended claims of breach of privacy. The verdict has advanced and revivified core constitutional principles in an era in which privacy is pitted against state interest.
  • Somehow, privacy as a value finds itself at loggerheads with notions of national security, the needs of a knowledge society and even socio-economic policy. Hopefully, this judgment will set many such concerns at rest and bring about a more equitable relationship between citizen and state.


Don’t fear trade deficit

  • Amidst rising political tensions between India and China, trade relations between the two countries have come under some pressure recently. India’s trade deficit with China, which stands at over $50 billion, has been projected by many on the Indian side as an economic evil that needs to be curbed by all means. To this end, they have demanded heavy tariffs and bans on Chinese imports. The trade deficit with China, in effect, is seen as a loss to India and a gain to the Chinese economy. So, naturally, steps to curb it are seen as justified.

Balance of trade

  • Union Commerce and Industry Minister Nirmala Sitharaman, for instance, held talks with her Chinese counterpart earlier this month demanding greater access for Indian goods to the Chinese market. While the idea of unrestricted cross-border trade sounds great, the focus of her talks was on trimming the trade deficit rather than promoting free trade. Such fear of the trade deficit, however, makes very little economic sense. This is because, contrary to popular belief, the prevalence of a trade deficit, or a trade surplus for that matter, says nothing about whether a country benefits or loses out from trade.
  • In fact, since free trade between countries happens on a voluntary basis, where individuals try to improve their lives, it is always beneficial to all sides. This is also the fundamental logic behind the overwhelming support for free trade among economists.
  • To make things simple, the balance of trade reflects how an economy earns its foreign exchange, and how it decides to spend it subsequently. Take the case of India’s trade deficit with China. India earns Chinese yuans primarily from Chinese investors who seek to invest in assets in the country. At the same time, India uses these yuans that it receives from Chinese investors mostly to purchase Chinese goods, rather than to invest them in Chinese assets. This preference among Indians for Chinese goods rather than assets, combined with Chinese preference for Indian assets rather than goods, is what causes India to suffer a trade deficit. If Indians had a greater preference for Chinese assets, and the Chinese had a greater preference for Indian goods, the situation would reverse and India would enjoy a trade surplus instead. The trade deficit is thus a mirror image of a capital surplus, which is formed by the relatively larger inflow of Chinese capital into India than vice versa.
  • As one can see, quite obviously, there is very little that is wrong with this state of affairs. A man who sells his assets to his fellow countrymen to purchase goods from them, for instance, would suffer a trade deficit and a capital surplus with the rest of the country. Very few would argue that the man suffers a loss from the trade, while the rest of the country gains from it. The same logic holds true when it comes to trade between countries as well. It is high time irrational fears over trade with China, or any other country, are put to rest once and for all.


To read and write better

  • The Right of Children to Free and Compulsory Education (Second Amendment) Bill of 2017 aims to maintain the standard of elementary education along with the avowed objective of providing compulsory education to children between the ages of six and 14.
  • The new Bill introduced in the Lok Sabha proposes to substitute Section 16 in the Right of Children to Free and Compulsory Education Act of 2009, which provides that “no child admitted in a school shall be held back in any class or expelled from school till the completion of elementary education.” The provision was made in the original Act because examinations were often used to hold back children who obtained poor marks. Parliament had no intention to demotivate a child by compelling him or her to repeat the same class or leave school altogether.
  • The new Bill has substituted Section 16 “in order to improve the learning outcomes in the elementary classes”. The Centre said this step has been taken after “wide deliberations with all the stakeholders”.
  • The Bill provides for a regular examination to be conducted in the fifth and eighth classes at the end of every academic year. If a child fails in the examination, he or she shall be given “additional instruction” and granted an opportunity for re-examination within the next two months.
  • In case the child fails in the re-examination too, the appropriate State government would be empowered with the authority to allow schools to either hold back or not hold back the child in the same class. No child, however, shall be expelled from a school till the completion of elementary education, the Bill clarified.
  • Earlier this year, the NITI Aayog had called for a review of the provisions of the 2009 Act on the ground that the best intentions enumerated under Section 16 were actually proving detrimental to elementary learning processes. Stakeholders argued that the situation was such that a child could be promoted till eighth class without probably being even able to read or write.